Full bench finds roster changes don’t require employee consent

May 12, 2017
FCB Workplace Law

Industry Focus

Health & Aged Care


In a decision handed down late last month, the Full Bench of the Fair Work Commission determined that Bupa was  able to change the rosters of its part-time employees without their consent, paving the way for increased workplace flexibility opportunities in the health and aged care industry.


The aged care provider operated under an enterprise agreement which contains a part-time agreement clause similar to that in the Aged Care Award 2010 but with a notable drafting difference that allowed the Full Bench to find that although the Award requires a part-time employee’s consent to alter their agreed hours of work, the enterprise agreement only required such consent for variations to their weekly number of hours. As a result changes to when those hours are worked, such as changing the days of work, can be made at the employer’s discretion.

This is very welcome news for many organisations within the health and aged care space, especially those with employees covered by the Nurses Award 2010 as the Award uses identical language to the enterprise agreement considered in this case.
Employers have been understandably frustrated by a general lack of flexibility in the industry around rosters, particularly as business trends and needs are often unable to be accurately predicted. This decision helps at least some providers to more effectively cater for unexpected changes in the workplace without incurring the exorbitant costs of overtime.
We recommend that all businesses in the health or aged care industry take the time to seek professional advice on the relevant part-time clauses of any applicable industrial instruments, to ascertain whether they will also be able to utilise this new-found flexibility and save potentially thousands of dollars in staffing costs.

If your organisation has an enterprise agreement it is definitely something to consider getting drafted correctly to allow you the maximum flexibility.
If you have any enquiries about this alert and what this could mean for you please contact Jessica Fisher, Partner with any questions (02) 9922 5188 – jmf@fcbgroup.com.au