What does it mean for my employer to give procedural fairness?
Procedural fairness broadly relates to the decision-making process followed or
Your regular hours of work may be either detailed in your contract of employment or defined as your predictable weekly set of hours. Upon commencing employment you would have agreed to this structure of hours even work hours were not subject of direct negotiation. In certain situations employers may seek to amend these hours to hours which are not suitable for you.
Contractual Obligations
You must first check your written employment contract for an express term that allows your employer to alter your hours and time of work. If there is no such clause, your employer will be at risk of breaching the employment contract. Your employer is not permitted to alter your contract unilaterally: see Abbott v Women’s and Children’s Hospital Inc (2003) 86 SASR 1, [34]. Further, you are not obliged to agree with any variation proposed by your employer: see Howtrac Rentals Pty Ltd v Thiess Contractors (NZ) Limited [2000] VSC 415, [417]–[424].
Further, there is an obligation of good faith implied into a contract of employment: see Mahmud v Bank of Credit & Commerce International S.A. [1997] UKHL 23; [1998] AC 20. If your employer has not engaged with you and ignored queries raised about your change of hours and roster it may be committing a breach of your employment agreement.
If your employer alters your ordinary hours or roster without consent or discussion, and without the express right to do so under the contract, you may be able to claim constructive dismissal and/or damages for any loss suffered under a breach of contract claim.
Obligations under an Award or Enterprise Agreement
The Fair Work Act 2009 (Cth) now requires consultation about changes to rosters or hours of work to be included in modern awards. Section 145A(1) advises that a modern award must include a term that requires ‘the employer to consult employees about a change in their regular roster or ordinary hours of work’. Further, section 145A(2) details:
“The term must require the employer:
Further, paragraph [74] of The Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014’ FWCFB 7447, details that the consultation must be real, not mechanical or formulaic. It will involve “more than just advising the employee of a change and willing for questions to be asked.” Additionally, consultation must occur before any proposed change.
There may also be additional obligations and protections under a specific enterprise bargaining agreement or other workplace instrument.
Other Potential Claims
If you believe that your employer has changed your hours due to you exercising a workplace right (taking annual leave, taking paid personal leave, making a complaint or inquiry within your employment, etc.) or a personal attribute (sex, pregnancy, age, race, etc.), your employer has effectively taken an adverse action in response to said workplace right or discriminated against said personal attributes. Please seek legal advice in regards to lodging a General Protections claim.
Further, if your employer terminates your contract on the basis that you cannot fulfil the new requirements without your consent, without consultation, without prior notification, without reasonable notice and without procedural fairness whatsoever, you may be eligible to lodge an Unfair Dismissal claim. Please seek further legal advice to determine whether this claim is right for you.
If you have any further questions in regards to changing working hours or other employment law matters, please do not hesitate to contact our lawyers at McDonald Murholme.