Con­sul­ta­tion about changes to reg­u­lar ros­ters and ordi­nary hours of work

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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.

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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.