Obli­ga­tions - changes to ros­ters or hours of work

Australasian Timber - - ASSOCIATION NEWS - By Brian Beecroft Chief Ex­ec­u­tive Of­fi­cer Tim­ber Trade In­dus­trial As­so­ci­a­tion

EM­PLOY­ERS SHOULD be aware that TTIA has re­ceived a num­ber of calls re­gard­ing any ad­di­tional obli­ga­tions when chang­ing hours of work of their staff. Em­ploy­ers need to be con­scious that ef­fec­tive 1 Jan­uary 2014, all mod­ern awards have in­cluded an ad­di­tional obli­ga­tion to con­sult with em­ploy­ees (and their rep­re­sen­ta­tives, if any) about any change to ros­ters or hours. The new con­sul­ta­tion clause un­der the Tim­ber In­dus­try Award 2010 is as fol­lows: “9.2 Con­sul­ta­tion about changes to ros­ters or hours of work Where an em­ployer pro­poses to change an em­ployee’s reg­u­lar ros­ter or or­di­nary hours of work, the em­ployer must con­sult with the em­ployee or em­ploy­ees af­fected and their rep­re­sen­ta­tives, if any, about the pro­posed change. The em­ployer must: pro­vide to the em­ployee or em­ploy­ees af­fected and their rep­re­sen­ta­tives, if any, in­for­ma­tion about the pro­posed change (for ex­am­ple, in­for­ma­tion about the na­ture of the change to the em­ployee’s reg­u­lar ros­ter or or­di­nary hours of work and when that change is pro­posed to com­mence); in­vite the em­ployee or em­ploy­ees af­fected and their rep­re­sen­ta­tives, if any, to give their views about the im­pact of the pro­posed change (in­clud­ing any im­pact in re­la­tion to their fam­ily or car­ing re­spon­si­bil­i­ties); and give con­sid­er­a­tion to any views about the im­pact of the pro­posed change that are given by the em­ployee or em­ploy­ees con­cerned and/or their rep­re­sen­ta­tives.

The re­quire­ment to con­sult un­der this clause does not ap­ply where an em­ployee has ir­reg­u­lar, spo­radic or un­pre­dictable work­ing hours.

Th­ese pro­vi­sions are to be read in con­junc­tion with other award pro­vi­sions con­cern­ing the sched­ul­ing of work and notice re­quire­ments.”

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. It is fairly com­mon for most TTIA Mem­bers 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 per­on­nel 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 where no gen­uine con­sul­ta­tion took place or the em­ployee was threat­ened with ter­mi­na­tion if they failed to com­ply with the di­rec­tion.

In sum­mary, un­der that leg­is­la­tion in­tro­duced by the previous fed­eral gov­ern­ment, the em­ployee would have the right to take the mat­ter fur­ther. We there­fore need to be seen to ap­ply a gen­uine con­sul­ta­tion process. If you are in any doubt re­gard­ing the em­ployee’s re­sponse af­ter fur­ther con­sul­ta­tion, please do not hes­i­tate to con­tact the TTIA ad­vice line on (02) 9264 0011 for fur­ther guid­ance.

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