Transfers — shift work — management prerogative
Author Paul Munro 31 Jan 2012
The right of an employer to transfer an employee to a different shift, and changes generally in relation to shift rosters, can cause problems for employers.
While there may be restrictions imposed by an applicable modern award or enterprise agreement relating to working arrangements regarding shift work or day work, most award or agreement provisions relate to the appropriate penalty rate where there has been an insufficient break between the working of shifts, or insufficient notice was provided by the employer in rostering an employee on a particular shift. The issue normally in dispute in this circumstance is whether the employer can exercise their management prerogative.
Industrial instrument/contract of employment
There may be situations where the employee’s contract of employment provides that they are engaged only as a day worker or only as a shift worker; however, in the absence of such a provision, most modern awards and enterprise agreements do not expressly provide for the employer to be able to transfer employees from (say) afternoon shift to day work. The absence of such a provision in a modern award or enterprise agreement does not mean the employer cannot transfer employees to a different shift.
A Full Bench of Fair Work Australia (FWA) held in a particular matter that in the absence of any term of a binding industrial instrument that prevents an employer from making changes to shift arrangements, an employer has a managerial prerogative to alter both the pattern and the structure of shifts and the particular shift worked by an employee. See: Australian Manufacturing Workers Union v Silcar [2011] FWAFB 2555 (29 April 2011).
The standard provision in a modern award is usually sub-headed ‘the arrangement for working ordinary hours’ and relates to how various shifts are arranged and worked, not to the question of who is allocated to each one.
While there may be restrictions imposed by an applicable modern award or enterprise agreement relating to working arrangements regarding shift work or day work, most award or agreement provisions relate to the appropriate penalty rate where there has been an insufficient break between the working of shifts, or insufficient notice was provided by the employer in rostering an employee on a particular shift. The issue normally in dispute in this circumstance is whether the employer can exercise their management prerogative.
Industrial instrument/contract of employment
There may be situations where the employee’s contract of employment provides that they are engaged only as a day worker or only as a shift worker; however, in the absence of such a provision, most modern awards and enterprise agreements do not expressly provide for the employer to be able to transfer employees from (say) afternoon shift to day work. The absence of such a provision in a modern award or enterprise agreement does not mean the employer cannot transfer employees to a different shift.
A Full Bench of Fair Work Australia (FWA) held in a particular matter that in the absence of any term of a binding industrial instrument that prevents an employer from making changes to shift arrangements, an employer has a managerial prerogative to alter both the pattern and the structure of shifts and the particular shift worked by an employee. See: Australian Manufacturing Workers Union v Silcar [2011] FWAFB 2555 (29 April 2011).
The standard provision in a modern award is usually sub-headed ‘the arrangement for working ordinary hours’ and relates to how various shifts are arranged and worked, not to the question of who is allocated to each one.
Case example — dispute
FWA recently considered a matter involving a dispute over the transfer of some employees from afternoon shift to day work.
The Agreement did not deal directly with the issue of whether or not the employer could transfer the employees from afternoon shift to day work without their agreement.
The terms of the agreement deal with the situation of employee requests to work different hours or shifts, either on a temporary or more permanent basis, rather than company initiated change. It was determined by FWA that the company could exercise its management prerogative to transfer employees from afternoon to day shift, even though there was no express term in the relevant award.
The process followed by the company was considered reasonable, although there was a recommendation by FWA that a further two weeks be provided before the change was implemented.
Management prerogative
The term ‘management prerogative’ is used by industrial courts and tribunals to describe an exclusive management right over some matter that the court or tribunal does not have the power or, in some cases, do not choose to regulate (eg the choice of business hours for an organisation).
Management may claim certain rights as exclusive prerogatives that may be challenged by employees or their representative, which has reduced prerogatives of management, both in number and scope.
However, the industrial courts and tribunals usually adopt the attitude that in the absence of evidence that the employer is abusing his or her powers by acting harshly, oppressively or unjustly, they will not interfere with the employer’s common law right to manage the business.
Shift work — industrial instruments
The ability to work shift work is determined by the applicable modern award or enterprise agreement. If no provision for shift work is provided by the applicable instrument, overtime is most likely payable for work performed outside the spread of hours fixed by the instrument.
Transfer on roster/from day work to shift work
Modern awards and enterprise agreement that contain shift work conditions usually provide that where an employer requires an employee to change from one shift to another (as distinct from day work to shift work), other than on regular rotation, a period of notice (eg 48 hours) is required or else the appropriate overtime penalty rate is payable for the duration of the notice period.
Where the employee is a day worker and the employer requires the employee to undertake shift work, it may be that at least one week’s notice is required, otherwise overtime may be payable. A term in an employee’s contract of employment stating that hours are to be worked at the direction of the employer would remove any ambiguity in moving an employee from day work to shift work.
Source: Paul Munro, IR Consultant.
 | Paul Munro Paul has over 30 years’ experience providing advice to employers on workplace issues, with over 25 years as a workplace relations advisor with New South Wales Business Chamber. Paul has also been in a workplace advisory role with employer organisations in the timber industry and club industry. more from Paul |
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