From 1st January, 2014, all employers engaging staff under a Modern Award will be obliged to:
- Consult employees about a change to their regular roster or ordinary hours of work; and
- Accept representations from those employees for the purposes of that consultation.
Employers are expected to invite employees to give their views about 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.
The award amendment comes about as a result of a recent insertion of a new section to the Fair Work Act 2009, (s145A), intended to assist employees to balance their work and family or caring responsibilities.
Consultation must be genuine:
In delivering their decision, the FWC full bench emphasised their expectation of the requirement to “consult”.
In passing they referred to the reasonable use of the term ….. “the word consult means more than a mere exchange of information….The word involves at the very least the giving of information by one party, the response to that information by the other party, and the consideration by the first party of that response.”
“The right to be consulted is a substantive right, it is not to be treated perfunctorily or as a mere formality. Inherent in the obligation to consult is the requirement to provide genuine opportunity for the affected party to express a view about a proposed change in order to seek to persuade the decision maker to adopt a different course of action.”
So what is the impact?
Clearly the new requirements mean Management must now move with greater care and consideration when implementing significant and ongoing change to an individual’s hours of work.
The amendment to the Act, and consequently to all awards, is a significant change in the fundamental ‘rights’ of Managers to manage a business; in many cases the right to unilaterally change rostering arrangements has been curtailed.
Nevertheless the change will not apply in circumstances where an employee has irregular, sporadic or unpredictable working hours (say in the case of ‘genuine’ casuals, as opposed to ‘permanent’ or ‘regular’ casuals), nor in the case of unforeseeable circumstances (e.g; the 2011 Brisbane floods), or major plant failures (e.g; a breakdown of a filtration plant in an aquatic centre).
There is a flow on effect to employers covered by current Enterprise Agreements, as the amendment to the Act requires EBAs to be read and applied as if they contain provisions similar to the award-based variation. Any grievances arising from roster changes will now be dealt with under the Dispute Handling provision of either the award or an applicable Enterprise Agreement.