5 MARCH 2014
On 1 January 2014, the Fair Work Commission issued a decision pursuant to recent amendments to federal employment legislation which, in essence, varied all modern awards to require employers to consult with award-covered employees about any changes to their rosters or ordinary hours of work.
More specifically, under the new laws employers are required to provide affected employees all relevant information regarding the proposed change, to invite the employee to give their views about the impact of the proposed change (including, for example, the impact on their family and/or caring responsibilities) and to consider any such views put forward by the employee.
We consider it is important for employers to update their policy manuals to ensure this consultation process is carried out whenever it is intended to change an affected employee’s regular roster or ordinary hours, so as to minimise the risk of falling afoul of the new laws. We also consider it to be prudent to ensure all communications as part of this process are made or at least confirmed in writing.
Employers that use roster systems for their staff also need to be mindful of the requirement, in certain circumstances, to try to accommodate an employee’s request for changes to that roster system where the employee has certain attributes which put them at a disadvantage compared to other employees. For example, this may apply where the employee has caring/parental responsibilities or an impairment which affects their ability to work at a certain time of day. This is because whilst the roster system may apply equally to all employees, it may have an indirect discriminatory impact on certain employees who have those attributes.
To minimise the risk of non-compliance with the anti-discrimination legislation, we recommend that where an employee expresses concerns about their ability to participate in a roster system employers should request full details as to their reasons for those concerns to ascertain whether that employee has certain attributes which may put them at a disadvantage compared to other employees. It may then be necessary to make enquiries with other employees and to investigate suitable alternative positions with a view to accommodating the employee’s request. The tribunal will balance these considerations with whether the requirement was in all of the circumstances reasonable in any event, or whether any statutory exceptions apply (for example, whether it was a genuine operational requirement).
We would be pleased to assist you in reviewing your policy manuals to ensure appropriate systems are in place to deal with the new laws as well as the existing anti-discrimination laws.
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Contact Partner: Michael Coe
Direct Telephone : 07 3210 5709
Mobile Telephone : 0408 983 876
[email protected]