As employers look for ways to implement more fluid work arrangements to respond to consumer demand, the Full Bench of the Fair Work Commission has handed down a decision which may assist employers of part-time employees.

In Bupa Care Services Pty Limited v New South Wales Nurses and Midwives' Association [2017] FWCFB 1093 the Full Bench held that Bupa could change part-time employees’ rosters without their agreement, provided there were no changes to the employees’ minimum guaranteed hours.

The issue

The part-time employment and rostering clauses in Bupa’s enterprise agreement, which are almost identical to clauses in the Nurses Award 2010, provide that:

  1. prior to commencement, an agreement must be reached with a part-time employee about “the guaranteed minimum number of hours to be worked and the rostering arrangements which will apply to those hours”;
  2. the terms of a part-time employee’s agreement can be varied by agreement and recorded in writing; and
  3. Bupa can change rosters by giving seven days’ notice to affected employees.

Bupa decided to implement a new care model which resulted in changes to its roster. After a consultation process, it wrote to employees informing them of the new roster, providing requisite notice of the change. The NSWNMA took issue with this, arguing that employees had to agree to a change to their roster and Bupa could not change it unilaterally.

The decision

The Full Bench considered the words of the enterprise agreement, as well as other written contracts in place between Bupa and its employees. It held that the enterprise agreement did not require an employee’s agreement to implement changes to the employee’s rostered hours.

Importantly, the written contracts in place between Bupa and its part-time employees contained wording making it clear that Bupa guaranteed minimum hours for part-time employees, but that the roster was subject to change by management.

The Full Bench also held that displaying a roster stipulating different start and finish times was sufficient to inform an employee “in writing” about changes to their roster, and personal notifications to each employee were not required.

What does this mean for you?

Whether you can change the rosters of your employees without their agreement will depend on the applicable award, enterprise agreement and/or employment agreement.

The flexibility to change the rosters of part-time employees provided in the Nurses Award is not replicated in many other awards. In Bupa the Full Bench commented on a previous decision, Leading Age Services Australia NSW – ACT [2014] FWCFB 129, where the part-time and rostering provisions of the Aged Care Award 2010 were considered. In that decision the Full Bench had stated that despite clause 22.6 of the Aged Care Award 2010, which states that an employer can change a roster with 7 days’ notice, the wording of the part-time clause in that Award meant that the employee had to agree to any changes to their days of work and start and finish times. Similar part-time clauses, which require agreement to roster changes, appear in other awards such as the Social, Community, Home Care and Disability Services Industry Award 2010.

The rise of consumer directed care has caused many employers across the health, disability and aged care sectors to consider more flexible working arrangements. The Bupa decision is a timely reminder for employers to ensure that the arrangements they have in place with employees are tailored to suit the particular conditions which apply to them. This includes considering the following points:

  1. Employment agreements should always reflect the requirements of the relevant award or enterprise agreement. In particular, it is important that the employment agreements used for part-time employees state the guaranteed minimum hours and where required, the rostering arrangements, or the exact days of work and start and finish times.
  2. Where possible, employment agreements should expressly grant employers the flexibility they may later need to make workforce changes to meet consumer demand.
  3. Enterprise agreements should be robustly negotiated and carefully drafted to suit the needs of your organisation, rather than just incorporating or reflecting the terms of the underlying awards.