22 January 2014 Consultation about changes to regular rosters and ordinary hours of work

By Warwick Ryan, Partner and Ellen Davis, Paralegal

In Brief

As of 1 January 2014, changing the staff roster has become a more complex process with the introduction of amendments to the Fair Work Act 2009.

A New Provision

Roster flexibility can be key in ensuring business efficiency in the face of changing operational requirements, seasonal fluctuations and the occasional unforeseen circumstances that a business may experience. Recent amendments to the Fair Work Act 2009 have now added an extra hurdle for small businesses when it comes to changing an employee's regular rostered hours or ordinary hours of work.

The new provision, section 145A of the Fair Work Act 2009, applies to all Modern Awards in operation on or immediately before 1 January 2014. The section now requires employers to consult with their employees about any change to their regular roster or ordinary hours of work.

The section provides the employee with the following rights in relation to changes to their regular working hours:

  1. consultation about a change to their regular roster or ordinary hours of work; and
  2. representation, if desired for the purposes of that consultation.

The section further provides obligations that an employer must:

  1. provide information to the employees about the change; and
  2. invite the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities); and
  3. consider any views about the impact of the change that are given by the employees.
Who must be consulted?

All permanent employees and any casual employees who have a reasonable expectation of a regular and systematic pattern of working hours.

What is consultation?

The obligation in section 145A 'to consult with employees' was observed in a decision of the the Fair Work Commission to mean more than one party telling the other what it is that he or she is going to do. Rather there is a requirement to provide information about the change and a genuine opportunity for the affected party to express views about the proposed change and have these views genuinely considered by the employer.  While you should consider the views of your employee you do not have to agree with or act on them.

Impact on employers

Firstly, section 145A is not a source of power for an employer to change an employee's regular roster or ordinary hours of work. If change is to occur employers are to genuinely consult with the affected employee prior to that change being implemented allowing sufficient time for the affected employee to consider the proposed changes and raise any concerns. Secondly, the section is not requiring the employee to be represented. If the employee does however choose to be represented the employer must respect that choice and consult with both the employee and their representative about any proposed changes.

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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