Punishment by changing shifts?

I have a flexible working arrangement allowing me to work permanent night shifts to care for my children during the day. I recently raised a complaint about the workplace and now my employer wants to unilaterally change my shifts to day-time only. What can I do?

The causes of action you have depend on the source of the flexible working arrangement and the reasons for your employer’s decision not to abide by it any longer.

What is the basis of your flexible working arrangement?

If you have signed a flexible working agreement for an unspecified period of time the agreement will likely constitute a formal contract and/or workplace instrument. Any deviation from it will be a breach of contract and/or workplace instrument and gives rise to legal causes of action.

If you have not signed a flexible working agreement or if your flexible working agreement is a verbal arrangement, you should refer to any award or enterprise bargaining agreement that governs your employment. Such awards or enterprise bargaining agreements may provide for an entitlement to a mutually agreed flexible working agreement or specify circumstances in which it may be modified. A breach of a term of an award or enterprise agreement will expose your employer to liability for a civil penalty.

You may also be able to lodge a grievance with your employer under any award, enterprise bargaining agreement or relevant company policy. This may allow you to request a review of the purported unilateral change to your shifts and force your employer or supervisor to re-consider their decision.

Why does your employer want to change your flexible working arrangement?

Furthermore if your employer has no reasonable basis for changing your shifts, has not sought to change the shifts of other employees on flexible working arrangements or is changing your shifts because you have raised a complaint, you may be entitled to lodge a Fair Work Commission General Protections application.

The alteration of your shifts to your detriment is adverse action. Under the Fair Work Act 2009 (Cth) an employer is prohibited from taking adverse action against an employee because an employee has exercised a workplace right. A workplace right includes the right to make a complaint or inquiry in relation to his or her employment.

An employer is also prohibited from taking adverse action against an employee because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.  You may be able to point to the fact that your employer has targeted you on one of the above bases and consequently has not unilaterally changed the shifts of any other employees on a flexible working arrangement.

You may alternatively lodge a complaint with the Victorian Equal Opportunity and Human Rights Commission for breach of the Equal Opportunity Act 2010 (Vic). The Equal Opportunity Act 2010 (Vic) prohibits an employer from unreasonably refusing to accommodate the responsibilities of an employee as a parent or carer. You may be able to point out that other employees may be able to work the day-shifts instead and that your employer is not accommodating your parental or carer’s responsibilities.

The Equal Opportunity Act 2010 (Vic) also prohibits an employer from discriminating against an employee where they subject the employee to detriment, in this case, being a unilateral change in shifts to the detriment of your family responsibilities. The bases of discrimination may include employment activity such as a complaint, parental status or status as a carer, pregnancy, sex, race, age, breast feeding, sexual orientation and/or religious belief or activity.