Often an employer will need to change rostered hours for an employee due to operational or seasonal variations in trade.

The Fair Work Commission has included a new term in each award requiring employers to consult employees about a change to their regular roster or ordinary hours of work.

The amendment of this provision in the Fair Work Act is one of a number of measures intended to assist employees to balance their work and family or caring responsibilities.

The new duty to consult is:

• to provide information about the change; and

• to provide an opportunity for affected employees to give their views about the impact of the change; and

• to consider any views about the impact of the change that are given by the employees.

The new term

Consultation about changes to rosters or hours of work:

(a) 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.

(b) The employer must:

(i) 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);
(ii) 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
(iii) 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.

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

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

What does “consult” mean?

The new clause requires employers “to consult [with] employees”. The Oxford Dictionary defines consult as, “Consult with. To take counsel with; to seek advice from.”

The definition in the Macquarie Dictionary is in similar terms: “1. To seek counsel from; ask advice of. 2. to refer to for information. 3. to have regard for (a person’s interest, convenience, etc.) in making plans…”

The word “consult” means more than the mere exchange of information. The word “consult” means more than one party telling another party what it is he or she is going to do. The word involves, at the very least, the giving of information by one party, the response to that information by the other party and the consideration by the first party of that response.

The right to be consulted is a substantive right, it is not to be treated perfunctorily or as a mere formality. Inherent in the obligation to consult is the requirement to provide a genuine opportunity for the affected party to express a view about a proposed change in order to seek to persuade the decision maker to adopt a different course of action.

The precise content of an obligation to consult will depend on the context. The extent and significance of a proposed change, in terms of its impact on the affected employees, will have a bearing on the extent of the opportunity to be provided.

So a change of limited duration to meet unexpected circumstances may mean the opportunity for affected employees to express their views may be more limited than would be the case in circumstances where the proposed change is significant and permanent.

What else did the Commission say?

• The right to be consulted is a substantive right, it does not confer a power of veto. Consultation does not amount to joint decision making.

• The new section of the Act does not confer a right on an employer to change an employee’s regular roster or ordinary hours of work. It is not a source of power in that sense. The employer’s power to change an employee’s regular roster or hours of work must be found elsewhere – either in the contract of employment or in an industrial instrument, such as a modern award or enterprise agreement.

• The obligation is to ‘consult employees about a change to their regular roster or ordinary hours of work’. Only those employees directly affected by such a change are required to be consulted.

• The clause ‘allows for the representation of those employees’. The word ‘allows’ is permissive – it does not require an employee to be represented but if they choose to be then the employer is to respect that choice and consult with the employee and their representative.

• The clear intent of the provision is that the employer be provided with the employee’s views about the impact of the change so that those views may be considered before the change is implemented or a definite decision is made.

Before an employee’s hours are changed, please seek advice about the award requirements.