Changing an employee’s regular roster or ordinary hours of work to suit your organisation’s operational needs, whilst trying to keep your employees happy, can be difficult at times. However, following amendments to the Fair Work Act, 2009 (FWA) in January of this year, that task is now more difficult.

In the past, in the hospitality and retail food industry, employers need only have provided notice to employees of an impending roster change. However since 1 January 2014, with the insertion of a term in all modern awards that requires employers to consult about changes to  regular rosters and hours of  work, employers  must ensure that they:

  • consult with employees covered by a modern award or enterprise agreement dated after 1 January 2014 before implementing a change to regular rosters, ordinary hours of work or flexible working arrangements, by:
    • providing information to employees about the change to their hours of work;
    • inviting employees to give their views about the  impact of the change, including any impact in  relation to their family or carer responsibilities; and
    • considering  any  views  given  by   the employees about the impact of the change.
  • document any discussions or dealings with affected employees about changes to regular rosters, ordinary hours of work and flexible working arrangements to assist in demonstrating that issues raised by employees have been genuinely considered.
  • ensure the consultation clause in an enterprise agreement dated after 1 January 2014 adequately addresses the new legislative requirements. The clause should require the employer to:
    • provide information to employees about the change to their hours of work;
    • invite employees to give their views about the  impact of the change, including any impact in  relation to their family or carer responsibilities; and
    • consider any views given by the employees about the impact of the change.

Importantly, for an industry where casual employment is prevalent, the consultation requirement does not apply to employees who have "irregular, sporadic or unpredictable working hours". However, this is quite broad and the obligation could still arise for casual employees who either undertake regular and systematic work or have a reasonable expectation of hours based on past hours worked. A failure to comply with the consultation term in a modern award or enterprise agreement could result in a number of potential remedies including:

  • a maximum civil penalty of 300 penalty units per contravention   for   a   body   corporate   (currently $51,000);
  • an injunction;
  • compensation for the affected employee/s; and/or
  • any   other   order   the   Court   considers   to   be appropriate.

It is important to note that the dispute resolution mechanisms of the relevant award or enterprise agreement will apply to the operation of the consultation term and that compliance with consultation terms, including the new requirements in relation to regular rosters and ordinary working hours, will continue to be enforceable by application to the Federal Circuit or Federal Court.

Not only can a failure to consult lead to potential remedies under the FWA, but it may result in a workers compensation claim if the process for making such changes is unreasonable. An employer that changed a worker's hours, and told her the new roster was "non-negotiable", was found liable for her psychological  condition. Whilst  the Court found that it was reasonable for the worker's employer, Centrelink, to require her to work five days a week instead of four, the employer did not comply with the Centrelink Agreement 2009-2011 by undertaking genuine negotiations with an employee every time management seeks to change an employee's regular hours.

If change is to occur, employers are to genuinely consult with the affected employee prior to that change being implemented allowing sufficient time for the affected employee to consider the proposed changes and raise any concerns. While you should consider the views of your employee you do not have to agree with or act on them but you need to show that you have genuinely considered them.