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 requirements.
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.