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:
consultation about a change to their regular roster or ordinary
hours of work; and
representation, if desired for the purposes of that
The section further provides obligations that an employer
provide information to the employees about the
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
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
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.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Treasurer Scott Morrison recently announced changes to a number of 2016 Budget superannuation contribution measures.
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