Reasonable changes to employee rosters will be permissible even if they have adverse effect

Wednesday, 19 February 2014

Key Points:

You should have sound business reasons to justify roster changes or other similar business decisions which may have adverse impacts on particular employees.

A reasonable business decision such as a change of rosters required to meet operational circumstances will generally be permissible even if it has a potentially adverse/discriminatory effect on one or more employees. This is because indirect discrimination (ie. conduct that has a greater effect on a person or group of persons because they have or do not have a particular attribute) has the additional element of reasonableness that must be considered in determining with the discrimination is unlawful. A recent decision of the Queensland Civil and Administration Tribunal illustrates the point.

McIntyre v Hastings Deering (Australia) Ltd [2013] QCAT 695

In McIntyre the applicant was a registered nurse employed by Hastings Deering as a Health and Safety Adviser at its Hasting Park facility in MacKay. The applicant commenced employment in November 2011. Her usual work pattern was 7:00 am to 5:00 pm Monday and Friday and 9:00 am to 3.30 pm Tuesday, Wednesday and Thursday.

In May 2012 Hastings Deering decided that it needed seven days a week coverage by the health and safety adviser role in order to align with the seven days a week work performed on the operational side of the business. This decision meant that what had previously been one single day work position (Monday to Friday) was changed to two positions working on a rotating roster across the seven days per week (each position working eight days on and six days off in each fortnight).

The change also meant that the start times which had previously been 7:00 am (Monday and Friday) and 9:00 am (Tuesday to Thursday) would change to 6:00 am and 8:30 am and the finish times, which had previously been 3.30 pm and 5:00 pm, would change to 4:00 pm and 6:30 pm.

The applicant claimed that she could not work the changed roster because of her parental responsibilities, as a single mother with two small children. In particular:

• The 6:00 am start time would require the applicant to leave her children at school/childcare at or before 5:30 am, which was not possible as neither the school nor childcare centre was open at that time;
• The 6:30 pm finish time would require the applicant to collect her children from childcare/school well after 6:30 pm, which was not possible as the school and childcare centre were both closed at that time;
• The rotating roster meant that on weekends or public holidays that the applicant was rostered to work there would be no  one available to care for her children.

The Tribunal accepted that the new roster was indirectly discriminatory in that the applicant was unable to comply with it because of her parental responsibilities and that a person without those responsibilities would be more likely to be able to comply with the requirements of the new roster. The Tribunal held however that Hastings Deering did have a logical and understandable basis for moving to the new roster and that the test was not whether the change was necessary but rather whether it was a reasonable management decision that had been taken based on operational requirements.

The Tribunal found that the change to the new roster was a rational business decision and that the proposed roster was not so extreme that it could not be justified. Accordingly, the Tribunal found that the requirement to work the new roster was reasonable, even though the decision had an adverse effect on the applicant.

What should employers do?

The McIntyre decision highlights the importance of having sound business reasons for justifying roster changes or other similar business decisions which may have adverse impacts on particular employees. Courts and Tribunals will generally not interfere on discrimination grounds with legitimate business decisions made on reasonable commercial or operational grounds, even if those decisions have a negative effect on some or all employees.

Courts and Tribunals are however more likely to find unlawful discrimination in relation to decisions that are ill-founded or extreme or not based on a proper consideration of circumstances. As such, the capacity of an employer to defend a claim such as that made in McIntyre will depend on the effort taken to identify the proper and legitimate business reasons for the proposed change.

Employers should:

• Document the business decision to change rosters or work patterns with an appropriate business case or other documents that identify the compelling business reasons for the change;
• Ensure that, as far as possible, employment contracts and enterprise agreements contain flexibility to alter rosters and work patterns to meet business and operational requirements;
• Ensure that any proposed changes are permitted by the employee's contract of employment and/or applicable enterprise  agreement;
• Know, understand and comply with the employer's consultation obligations in relation to changes to rosters and work patterns;
• Consider any issues raised by an employee about the impact of changes to rosters or work patterns on the employee, particularly any requirements that disproportionately affect the employee because of things such as parental responsibilities, disabilities or other protected attributes; and
• If in doubt, seek our advice and assistance.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

Last Updated: 11 February 2014

Article by Dan Trindade and Ned Overend

Clayton Utz

Source:<http://www.mondaq.com/australia/x/291714/Discrimination+Disability+Sexual+Harassment/Reasonable+changes+to+employee+

rosters+will+be+permissible+even+if+they+have+adverse+effect>