Full Bench upholds Bupa’s right to change rosters in line with resident care needs

On 20 April 2017, a Full Bench of the Fair Work Commission handed down a decision that supports Bupa’s right to change rosters of part time employees across its 29 aged care homes in NSW, even where agreement is not reached with relevant employees.  This decision is important, as the relevant terms of Bupa’s NSW enterprise agreement (EA) are almost identical to those in the Nurses Award 2010 (a modern award whose terms apply throughout many workplaces in the Australian health industry).  In this regard, the decision reinforces an employer’s right to change rosters in line with the prevailing needs of the customer (in this case, the elderly residents in need of care), subject to the terms of the relevant industrial instrument.

The dispute, which involved two part time employees, concerned Bupa’s ability:

  • under clause 24 of the EA to change the roster of a part time employee, without agreement, after appropriate consultation and notice is provided under the EA (note: clause 24 applies to “all employees”, provides that employees will work the roster “fixed by Bupa” and allows Bupa to change the roster on 7 days’ notice); and
  • under clause 9.3(c) of the EA to agree to roster changes verbally with another part time employee and then record that agreement “in writing” by publishing it in the written roster – which is posted at the workplace and available to all employees (note: clause 9.3(c) provides that the terms of an agreement with an employee about a change in their guaranteed minimum hours and rostering arrangements must be “recorded in writing”).

At first instance, the Commission held that the EA did not allow Bupa to take either of the above steps, finding that the EA 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); and
  • include roster details in personal correspondence to the other employee, and that verbal agreement subsequently recorded in the written roster is not sufficient for the “recorded in writing” requirement the EA.

The Full Bench granted leave to appeal and quashed both of the Commission’s findings at first instance. A link to the decision is included below. The key findings of the Full Bench are at paragraphs 56 and 62.  The relevant clauses of the EA are extracted at paragraphs 38 and 39 of the decision.  The Full Bench accepted Bupa’s submission that the EA allowed Bupa to fix the employee’s part time roster without agreement (and that agreement is only required if there is to be a change to total fortnightly hours, an argument which Bupa also contended is the case). Further, the Full Bench held that changes to the roster of the second of the two part-time employees can be recorded in writing in the written roster.  As was argued by Bupa at first instance, “Changes to the roster at Bupa are made in writing as the evidence has borne out.  It’s called a roster.  The roster is a written document provided to all employees, accessible to all employees, for everybody to see.”

This case should not be seen as authority for the proposition that employers can simply change rosters carte blanche.  Rather, employers need to carefully consider the terms of the enterprise agreements / awards which apply at their workplace, be conscious of anti-discrimination laws (in particular, laws relating to indirect discrimination), review the terms of underpinning employment contracts, and – perhaps most importantly – undertake any change in a way which is inclusive and does not disenfranchise employees (including ensuring appropriate consultation takes place and flexibility is shown at the employer’s end as well the employee’s).  In relation to this final point, it is noted that in the present matter, Bupa had successfully reached agreement on the relevant roster changes with all but one of the 2,272 employees involved – the union brought the claim on behalf of the single employee with whom agreement could not be reached.

Here is a link to the Full Bench’s decision: https://www.fwc.gov.au/documents/decisionssigned/html/pdf/2017fwcfb1093.pdf

Please note that this is a brief case note of a decision which involves complex legal issues.  These are my own personal views and this article does not constitute legal advice.

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About Calum Cook:

Calum is the Deputy General Counsel – Care Services, Employment and Litigation at Bupa Australia and New Zealand. He is a former Senior Associate at Herbert Smith Freehills and holds a Bachelor of Laws (Hons) and Bachelor of Arts from The University of Melbourne.