When you consider the Fair Work Act amendments which took effect
as at 1 January 2014, it seems as if the new bullying provisions
received all of the attention. In addition to bullying, there where
also a number of other changes which may affect the day to day
operations of your business, which are equally important.
As at the 1 January 2014, modern awards and enterprise
agreements must now include a term requiring employers to consult
with employees about a change to the regular roster or ordinary
hours of work (this doesn't apply to an employee who already
has irregular, sporadic or unpredictable hours of work).
As an employer you are now obligated to provide information to
the employees about the proposed change; invite the employee to
give their views about the impact of the change (including any
impact in relation to their family or caring responsibilities); and
to consider any views about the impact of the change that are given
by the employees. If the employee has union representation, the
representative is entitled to be involved too.
Seems straightforward enough, right? Well, perhaps not. This
obligation could create a hurdle for a business which needs to fill
or change a shift quickly. What if the employee is uncooperative,
or insists on representation and that representation is not
immediately available? While consultation in this context seems to
be a fair and transparent approach - the sort of thing most
employers would do anyway informally - I wonder if the practical
consequences of these obligations have been thought through in
detail. Let's hope that the requirement is treated flexibly
where the circumstances are pressing - but if a change is required,
don't leave it till the last moment to talk to the
While consultation doesn't mean you have to agree to
whatever the employee says, nor can it be treated as a formality -
you have to consider what they say in good faith. Whatever you do,
don't have a situation where it looks like the decision to
implement the change has already been made without any intention to
take into account the needs and preferences of the employee.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).