Recent amendments to the Fair Work Act 2009 (Cth) (Act) provide increased protections for employees, who will be entitled to the benefit of greater consultation in relation to proposed changes to their rosters and hours of work from 1 January 2014.
What are the new rostering protections?
Modern awards will be varied with effect from 1 January 2014 to require employers to consult employees about changes to their regular rosters or ordinary hours of work. The amendments also allow employees to be represented for the purposes of such consultation. Employers will be required to provide information about the proposed change, invite employees to give their views about the impact of the proposed change (including any impact in relation to their family or caring responsibilities) and consider any views given by the employees about the impact of the change before implementing the change.
All enterprise agreements made on or after 1 January 2014 must also include a consultation term that requires the employer to consult with employees about a proposed change to their regular roster or ordinary hours of work.
This mandatory term will also require employers to provide employees with information about the change, invite the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities) and consider any views given by the employees about the impact of the change. It is presumed that the model consultation term (which applies where there is no consultation term in an enterprise agreement) will be varied to reflect these amendments, although it remains to be seen whether any changes to the model term would apply retrospectively.
When will the new rostering protections apply?
The new rostering protections will generally apply where any of the following industrial instruments apply to an employee:
- a modern award that has been varied to include the new consultation term;
- an enterprise agreement made before 1 January 2014 that incorporates a modern award as varied, amended or replaced from time to time (subject to any ‘inconsistency of provisions’ clause);
- if variations to the model term apply retrospectively, an enterprise agreement made before 1 January 2014 that does not include a consultation term and to which the model consultation term applies; or
- an enterprise agreement made after 1 January 2014.
Impact on employers
Employers will be required to genuinely consult with affected employees prior to making a decision to change their regular roster or ordinary hours of work. This will be a significant change for employers who are currently not subject to any such restrictions. The consultation obligation will apply regardless of whether an employee is permanent or casual, where the employee has an understanding of, and reliance on the fact that, their working arrangements are regular and systematic. The greatest impact of the change is likely to occur when employers wish to change the roster or working hours of part-time employees.
Although the requirement to consult with employees does not mean that an employer must reach agreement with employees, consultation must be meaningful and may involve representatives of the affected employees. Employers will have to consider the impact of the changes on affected employees includingbut not limited to any impact on their family or carer’s responsibilities. This opens the prospect of discrimination claims being made against employers who make changes to an employee’s ordinary hours of work despite objection from employees on the grounds of family or carer’s responsibilities.
Failure to comply with the new consultation obligations will amount to a breach of the modern award or enterprise agreement exposing the employer to penalties under the Act.
Lessons for employers
In preparation for the changes, employers should:
- Consider whether the increased roster and change of hours protections will apply to any of their employees
- Keep track of the variations to relevant modern awards (including any modern award that is incorporated in the employer’s enterprise agreement) and the model consultation term
- Be aware that, if they are currently in the process of negotiating an enterprise agreement, the new rostering and change of hours protections must be included in the agreement (unless the agreement will be made by 31 December 2013)
- Review their employment documents, including policies and procedures concerning changes to regular rosters and ordinary hours of work, to ensure that they will comply with the new obligations from 1 January 2014
- Ensure that they comply with the new consultation obligations. While consultation does not require an employer to agree with the affected employees, consultation must be meaningful.