Many employers are getting around these guarantees by having a discussion with their employees, but ensuring that those discussions have no hope of influencing any outcomes.
Technically, they appear to be complying with the law, whilst in reality they render the discussion hollow and meaningless, as the decision has already been made.
Although this approach might appear to comply with the law, in reality it falls far short.
The courts have looked at this issue in a number of cases and come up with a number of principles about what constitutes “consultation”.
The requirement to consult should never be treated as a mere formality – the party to be consulted must have a meaningful opportunity to express their views and point to problems. In the words of one judge, “consultation is no empty term.”
Consultation is not an opportunity for decision-makers to allow those being consulted to make ineffective representations – rather, they must enable points of view to be put forward which may result in changes to a proposal or even its withdrawal.
Consultation should be done at a formative stage of proposals, before the mind of the decision-maker has become fixed.
Employees on parental leave have a right to be meaningfully heard on any decisions that significantly affect their job, which includes the opportunity to influence the outcome of that decision.
If an employer orchestrates a pre-determined outcome dressed up as “consultation”, this does not satisfy their legal requirements and employees are entitled to demand something better.
If the federal government is truly committed to security for employees on parental leave, they should do more than score political points about being family-friendly but seek to strengthen these very important legal protections, and ensure employers understand their obligations to employees.
Giri Sivaraman is principal and Alessandra Peldova-McClelland is a lawyer in the Sydney employment law practice at Maurice Blackburn.
