As part of the award modernization process and as a result of the Fair Work Amendment Act 2013 (the Amendment Act), the Full Bench of the Fair Work Commission handed down its determination in late December 2013 amending consultation clauses in all modern awards. 

Modern awards now include a term requiring employers to consult employees about any changes to their regular roster or ordinary hours of work.  In addition, section 205 of the Fair Work Act was amended by the Amendment Act to provide for a similar consultation term relating to changes to rostered hours to be included in all enterprise agreements made on or after January 1, 2014.

The change in modern awards

In December 2013, the Commission ordered that modern awards be varied to provide for the new consultation term.  The new consultation term requires that:

  1. the employer consult employees about a change to their regular roster or ordinary hours of work; and
  2. allow for the representation of those employees for the purpose of that consultation.

The new obligation requires the employer to:

  1. provide information to the employees about the change;
  2. invite the employees to give their views about the impact of the change (including any impact in relation to their family and carer responsibilities); and
  3. to consider any views about the impact of the changes given by the employees.

We posted the new roster to the noticeboard – surely that’s consultation?

Not necessarily. 

The Commission provides useful analysis relating to the obligation surrounding consultation and confirms that the word “consult” means more than the mere exchange of information:

“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 a 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”. [31] – [2013] FWC FB 10165

But the change to our roster is only for three months to cover increased production demands….

Whilst the Commission notes that the right to be consulted does not confer a power on an employee to veto a decision regarding roster changes, any change, even of a limited duration to meet unexpected circumstances, could trigger this new obligation. 

Employer associations argued in the Commission that the new consultation obligation should only be triggered where the proposed change to a roster or working schedule was permanent.  This argument was rejected by the Full Bench who stated that there was no “legislative warrant to limit the operation of the relevant term to changes of a particular character”.

We have casuals whose rosters change from week to week – do we need to consult?

Whilst the term “regular roster” is not defined, the Explanatory Memorandum to the Amendment Act provides that, whilst this new obligation does not apply to an employee with irregular, sporadic or unpredictable working hours, it can include both permanent and casual employees provided the employee performs regular and systematic work. 

Why is this necessary?

The underlying intent of the new consultation obligations are to ensure that employers do not unilaterally make changes that adversely impact upon their employees without consulting on the change and considering the impact of those changes on those employees, their family and caring responsibilities. These changes were made as part of other “family friendly measures” introduced by the Amendment Act, such as enhanced ability to seek flexible working arrangements.

Employers should be mindful of the new obligations prior to implementing any proposed change to rostering or working hours for their employees.  Whilst the Commission notes that consultation does not amount to “joint decision making”, failure to demonstrate any genuine attempts to consult with employees about changes to their working hours or rosters could result in breaches of a modern award or enterprise agreement.