Any employer who wants to make changes to the terms of the employment contract between the employer and the employee, including changes to the working hours, must ensure that they comply with the relevant laws first and do not breach any of their obligations under their employment contract, and the relevant award or enterprise agreement.
Changes to the Working Hours
The working hours of an employee are detailed in their employment contract with the employer. The employer cannot make changes to these working hours if there is no express term in the employment contract allowing this change to be made or the employee agrees to the proposed change(s).
In the case of Public Service Association v Zoological Parks Board NSW, it was held that before making any changes to the working hours of the employee, the employer must check the applicable modern award, enterprise agreement, or employment contract and workplace policies, relevant to their employment relationship.
Further, in Abbott v Women’s and Children’s Hospital Inc (2003) 86 SASR 1, [34], an employer cannot unilaterally change the terms of a contract without first consulting the employee and pursuant to Howtrac Rentals Pty Ltd v Thiess Contractors (NZ) Limited [2000] VSC 415, [417]–[424], the employee is not obliged to accept any changes to the working hours proposed by the employer.
Section 145A of the Fair Work Act 2009 (Cth) (the FWA) states that modern awards must include the term according to which the employer must consult the employee before making any changes to their roster or working hours. These terms are found in most of the modern awards.
Next Steps
If you have any questions in relation to this article, please contact Damin Murdock at Leo Lawyers on (02) 8201 0051 or at office@leolawyers.com.au.
DISCLAIMER: This article is not to be taken as legal advice and is general in nature. If you require specific advice, please contact us.
