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It cuts both ways

It cuts both ways

By Calum Cook

Workplace Workplace Relations 

It is increasingly common for employees to have flexible work arrangements, however employers also require a degree of flexibility from their employees. Snapshot It is generally understood and respected that employees are seeking more flexibility to ensure they maintain a healthy work-life balance. However, what is sometimes overlooked is that employers also need a degree of flexibility to ensure they can meet the prevailing requirements of their businesses. Recent cases support an employer’s ability to make roster and other changes in line with changing operational needs. There is an increasing focus on the workplace and workforce of the future being flexible and dynamic. Employees are undertaking work in different ways, including job sharing, working remotely, working in shared spaces, relying more on technology and moving to part time hours in line with family and other commitments.1 The right of employees to request flexible working arrangements is embedded in the Fair Work Act 2009 (Cth)2 (the Act) and enterprise agreements often include scope for employees to work flexibly.3 This is a positive development aimed at ensuring employee engagement, retention and productivity. However, in the dialogue around workplace flexibility, the focus is often skewed towards the employee’s needs and fulfilment. What is sometimes missed in this dialogue is that employers also need a degree of flexibility to ensure the prevailing needs of their businesses can be met. The Fair Work Commission (FWC) has recently dealt with the issue of an employer’s right to unilaterally implement changes to rosters and work patterns in line with the operational requirements of the business and general managerial prerogative. This builds on previous jurisprudence of the courts and industrial tribunals in relation to this issue.4 The FWC has provided further guidance and reinforcement as to how flexibility can cut both ways – in the interests of both the employee and employer. In the process, the FWC has overcome some misconceptions about the interaction between key modern award provisions, which were previously used as a basis to restrict workplace flexibility. Bupa Aged Care v NSWNMA The issue of an employer’s ability to implement change came to the fore during a recent industrial dispute between Bupa Aged Care Australia Pty Ltd (Bupa) and the NSW Nurses and Midwives’ Association (NSWNMA). Bupa sought to change its rosters in NSW in line with the prevailing needs of the elderly residents for which it cares. After an extensive consultation process, the company reached agreement on roster changes with all but one of the 2272 of the impacted employees. The part-time employee who did not agree to the roster changes insisted that she had the right to retain her existing roster, despite provisions in her employment contract and the relevant enterprise agreement5 which suggested the contrary. The NSWNMA, on behalf of the employee, then filed an application in the FWC pursuant to s739 of the Act for resolution of the dispute under the enterprise agreement. The dispute resolution procedure in the enterprise agreement provides that a dispute about a matter under the agreement may, if not resolved by discussions at the workplace level and conciliation by the FWC, be referred to the FWC for arbitration. Bupa’s right to make changes unilaterally, without contravening the enterprise agreement, was the key issue between the parties throughout proceedings. The NSWNMA submitted Bupa did not have this right. In response to questions posed by the Commissioner as to how Bupa could achieve the required flexibility (in the absence of agreement) without being able to mandate the change, the NSWNMA submitted that: Bupa could achieve the flexibility it requires by increasing the casuals employed in its workforce, because “casual employment allows for some greater flexibility”;6 and the permanent part-time employee’s role may be redundant.7 Bupa argued that flexibility could be achieved without the need for redundancies or the casualisation of its workforce. That is, the company argued that while its permanent part-time employee's fortnightly hours were indeed guaranteed, both its enterprise agreement and the relevant employment contracts allowed for flexibility as to when those hours are worked. Specifically, Bupa relied on clause 24 of the enterprise agreement which provides that “all employees” will work the roster “fixed by Bupa” and allows Bupa to change the roster on seven days’ notice. Further, the relevant part-time employment contract provided that: “Your hours of employment are 32 per fortnight. You are required to work a roster as displayed. No shifts are guaranteed, with any and all shifts subject to change at the direction of management”. At first instance, the FWC found the enterprise agreement provides that Bupa must reach agreement in writing with the part time employee in question before making any change to her roster (meaning clause 24 cannot be used to change or fix a roster for part-time employees where agreement cannot be reached).8 In doing so, the FWC relied upon clause 9.3 of the enterprise agreement which defines part time employment and relevantly states that: “(b) Before commencing part-time employment, Bupa and a part-time employee will agree in writing the guaranteed minimum number of hours to be worked and the rostering arrangements which will apply to those hours . . . “(c) The terms of the agreement may be varied by agreement and recorded in writing.” The FWC at first instance reasoned that allowing the employer to change the roster unilaterally would be inconsistent with the objective in clause 9.3 of ensuring predictability and certainty in employees’ working patterns. A secondary finding was that Bupa’s practice of agreeing to roster changes verbally with part-time employees and then recording that agreement by publishing it in the written roster – which is posted at the workplace and available to all employees – is not compliant with the “recorded in writing” requirement in clause 9.3(c) of the enterprise agreement (see above). In making this finding, the FWC rejected the evidence and submissions of the company as to its compliance with the agreement.9 This finding effectively meant that Bupa is required to include individual roster details in personal correspondence to each employee, rather than the more expedient, practical process of simply reflecting the verbal agreement in the care home’s roster. On appeal, the Full Bench of the FWC quashed the decision at first instance and dismissed the NSWNMA’s application.10 In doing so, the Full Bench held that while Bupa is required to guarantee the part-time employee’s total fortnightly hours (a point which had been agreed between the parties), “she is required to work in accordance with the displayed roster. As such . . . we are satisfied [Bupa] is able to change [the employee's] roster without reaching an agreement in writing with her”.11 The Full Bench further held that reflecting the verbal agreement reached with an employee in the written roster satisfies the “recorded in writing” requirement in clause 9.3(c).12 In making this finding, the Full Bench overcame misconceptions regarding the interaction between the two key provisions referred to above (clauses 9.3 and 24), which had been used to restrict flexibility and change. Specifically, the Full Bench resolved the apparent conflict between clauses 9.3 and 24, finding that clause 9.3 does not contain specificity in relation to days or starting and finishing times that a part-time employee will work and, therefore, it does not undermine or restrict the ability to unilaterally change rosters under clause 24.13 Significantly, the relevant terms of the enterprise agreement are almost identical to those in the Nurses Award 2010, a modern award whose terms apply throughout many workplaces in the Australian health industry. Roberts & Collins v Coles Roberts & Collins v Coles Group Supply Chain Pty Ltd14 involved an industrial dispute regarding Coles abolishing the permanent night shift at one of its distribution centres. Agreement could not be reached between Coles and two night-shift employees as to the shifts into which the employees would be redeployed. Coles sought to implement a merit selection process, pursuant to its enterprise agreement,15 in relation to the two-night shift employees to determine the shifts into which they would be redeployed. The two employees applied to the FWC, pursuant to s739 of the Act, seeking resolution of the dispute. The employees sought orders that they be appointed to the afternoon shift due to their carer/family responsibilities and claimed that Coles had contravened the terms of the enterprise agreement regarding anti-discrimination, introduction of change and dispute resolution. The FWC dismissed the employees’ applications, finding there had been no contravention of the enterprise agreement and that “it is difficult to imagine a notification and consultation process which could have been more transparent, exhaustive, comprehensive and responsive”.16 In his decision, Deputy President Sams stressed that the FWC’s role is not to arbitrate where a person is unhappy with the outcome of a roster change and seeks to override managerial prerogative to make changes pursuant to an enterprise agreement.17 The Deputy President noted that the practical corollary of making such an order would be to displace other employees in the roster who had in good faith participated, and been selected, in the section process.18 It was noted that in situations where employees need to change shifts there will inevitably be “winners and losers”.19 The Deputy President held that: “It must be stressed that consultation does not mean agreement; nor does it mean an employee can hold out until they get what they want. It most certainly does not mean that the employee can have a veto power of the employer’s final decision or that the employer must create a shift for one person where one does not exist.”20 Conclusions The cases referred to above serve as a reminder that employers can make shift and other workplace changes in line with the prevailing needs of their business without falling foul of industrial laws. That is, an employer is not required to maintain arrangements which are not working for the business or its customers – and an employer can proactively seek to fix outdated or otherwise inappropriate arrangements. It is important to note that each of the companies in the cases above had industrial arrangements which allowed for the change sought. Some employers will, of course, have more restrictive industrial arrangements. Therefore, neither of the cases referred to above should be seen as authority for the proposition that employers can simply change (or abolish) rosters and work patterns carte blanche, then redeploy impacted employees as they see fit. Rather, the facts and findings in these cases underline five key considerations for employers, employees and their advisors: Consider consistency with relevant industrial instruments: Care needs to be taken to ensure any proposed change does not cut across the terms of the enterprise agreements/awards which apply at the workplace (this includes ensuring consultation processes and notification requirements are followed). It is not difficult to inadvertently trigger a breach in circumstances where a proposed change is not fully thought through before implementation, thereby exposing the employer to costly and damaging breach proceedings. Consider consistency with employment contracts: Similar to above, any change must not be inconsistent with the terms of the relevant employment contracts. Where the proposed change is inconsistent with the terms of relevant employment contracts, any unilateral change will open up the possibility of an unfair dismissal claim (on the basis of a constructive dismissal)21 or breach of contract claim (on the basis of repudiation).22 Challenge the status quo (if necessary): Where the change sought is important and the relevant industrial instruments or contracts do not include the requisite flexibility, it may be time to seek a variation to the relevant terms. This can be difficult and involved. It may involve union negotiation and seeking to unwind a status quo which is deeply entrenched and valued by employees. However, it is sometimes a discussion or negotiation worth having to ensure customer demands are met and the business remains viable.23 There is always scope for creativity and innovation in enterprise bargaining and employee relations generally. Consider the impact of anti-discrimination laws: It may be that certain employees cannot comply with a request to change their working arrangements due to family/carer commitments, illness or other issues. Therefore, it is important to be conscious of indirect discrimination laws which prohibit the imposition of any unreasonable requirement, condition or practice which, while facially neutral, has the effect of disadvantaging people with a particular attribute (eg, family/carer commitments).24 These discrimination issues should arise – and should be carefully and sensitively addressed – during the consultation process. Maintain employee engagement: Perhaps the most important consideration for employers is to undertake any change in a way which is inclusive, considerate and does not disenfranchise employees. This includes ensuring appropriate consultation takes place with employees and their representatives, and flexibility is shown at the employer’s end as well as the employee’s. In relation to this final point, in both cases referred to above, the employers undertook extensive consultation before any final decision was made, which was duly noted by the FWC. In the Bupa matter, the company had successfully reached agreement on the relevant roster changes with all but one of the 2272 employees involved. The union brought the claim on behalf of the single employee with whom agreement could not be reached. Calum Cook is legal director, Care Services, Employment & Litigation for Bupa Australia and New Zealand. He was in-house counsel with carriage of the Bupa v NSWNMA Full Bench matter. 1. See, for example: “How flexible work will reshape the Australian workforce”, Josh Nicholas, Business Insider, 3 May 2016; “The benefits of making flexibility work”, Sally Orpin, Centre for Workplace Leadership, 25 August 2016; “ACTU pushes for family-friendly flexibility”, Lenore Taylor, 5 December 2012, The Age; “ACTU fighting to overhaul ‘unfair’ rules for working carers after requests for time off knocked back”, Tom Nightingale, 28 August 2017, The Age. 2. Part 2-2, Division 4. 3. See, for example: IP Australia Enterprise Agreement 2017 which includes specific “Family Friendly Workplace” clauses; Wollongong City Council Enterprise Agreement 2015 – 2018 which includes “family friendly arrangements such as flexible work schedules, flexible leave arrangements, paid and unpaid parental leave, carer’s leave, and employee information and referral programs contribute to making work an easier place for employees with family responsibilities”. 4. See, for example: Re: Cram and Others; Ex Parte NSW Colliery Proprietors’ Association Limited and Others (1987) 163 CLR 117 at 135-7; Australian Sugar Milling Association v AWU (1996) 152 QGIG 1861 – upheld on appeal in (1996) 153 QGIG 7; Monash College Pty Ltd v National Tertiary Education Industry Union [2012] FWA 4725. 5. Bupa Care Services, NSWNMA, ANMF (NSW Branch) and HSU NSW Branch, New South Wales Enterprise Agreement 2013. 6. Transcript of Proceedings before the FWC (C2016/4647 and another), 5 September 2016, at PN561. 7. Note 6 above, at PN386. 8. NSW Nurses and Midwives’ Association v Bupa Care Services Pty Limited [2016] FWC 8508. 9. Note 6 above, at PN175, PN176, PN180, PN607. 10. Bupa Care Services Pty Limited v NSW Nurses and Midwives’ Association [2017] FWCFB 1093. 11. Note 10 above, at [56]. 12. Note 10 above, at [62]. 13. Note 10 above, at [54] and [56] 14. [2016] FWC 4898. 15. Coles Smeaton Grange (NUW) Regional Distribution Centre Enterprise Agreement 2014. 16. [2016] FWC 4898, at [102]. 17. Note 16 above, at [97], [98] and [101] and cases referred to therein. 18. Note 16 above, at [105]. 19. Note 16 above, at [105]. 20. Note 16 above, at [99]. 21. See, for example: Owens v Allied Express Transport Pty Ltd [2011] FWA 1058 (permission to appeal refused [2011] FWAFB 2929). 22. See, for example: Whittaker v Unisys Australia Pty Ltd (2010) 192 IR 311. 23. See, for example: BWA Group Services Pty Ltd Bankwest Enterprise Agreement 2016, where Bankwest negotiated an enterprise agreement that introduced rostering trials to enable the bank to ramp-up staffing during high-demand periods and also increased the bank’s ability to require employees to take annual leave. 24. See, for example: Equal Opportunity Act 2010 (Vic), s9.

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