Effective 1 January 2014, all modern awards include an
additional obligation to consult with employees (and their
representatives, if any) about any change to rosters or hours.
The new consultation clause is included in identical terms in
all modern awards. Its operation is, of course, limited to
employees covered by a modern award.
The obligation is similar to the obligation to consult employees
regarding major workplace change (which most commonly comes into
operation when redundancies are proposed).
In the context of changes to rosters or hours, the obligation
arises where an employer proposes to change an employee's
regular roster or ordinary hours of work. The obligation is to
provide the employee or employees affected and their
representatives (if any) with information about the proposed change
(e.g. the nature of the change to the roster or hours and when that
change is proposed to commence), to invite the employees affected
to give their views about the impact of the proposed change
including any impact in relation to family or caring
responsibilities, and to give consideration to any views expressed.
This does not, of course, require that those views must be
accepted, but they should be considered in good faith, and
accommodated if practical.
The requirement to consult does not apply where the employee has
irregular, sporadic or unpredictable working hours, and it remains
to be seen exactly what situations will be regarded as
"irregular, sporadic or unpredictable'.
The new provisions are to be read in conjunction with any other
applicable award provisions about work scheduling and notice
It would, of course, be routine for most employers to
communicate with employees about the changes to hours and when such
changes should commence. The gist of the provision is that rather
than telling an employee what the changes will be, changes should
be communicated as a proposal with scope for response, and indeed
the obligation could be read as including an obligation to actively
enquire about how the change might affect the employee's family
or caring responsibilities, rather than stating the position and
leaving it to the employee to raise that issue. What might be
required in that regard would depend on how significant the
proposed change is: if it involves weekends, or early or late
hours, or hours which affect the ability to collect children from
school or childcare, then it will be necessary to ask the employee
what effect the proposed change will have.
Although there is no obligation for this consultation to be
accompanied by written notice or records, a prudent employer would
note on the personnel files of the affected employee at least brief
details of communication and response, and any subsequent change to
hours or rosters.
The potential consequence of failing to consult with an employee
as required would be prosecution by the Fair Work Ombudsman for
breach of an award condition. In practical terms, this is most
likely to happen in cases which appear to be gross exploitation of,
or oppressive behaviour towards, an employee. However, failure to
comply with the requirements of the award may arise as part of
other employment disputes and would be a disadvantage to an
employer in that context.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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