Union Succeeds in Slowing Down the Introduction of Flexibility Arrangements

The Australian Workers Union (AWU) has succeeded in convincing the Fair Work Commission that an employer's attempt to introduce Individual Flexibility Arrangements (IFAs) had the potential to be considered unlawful and demonstrated poor communication messaging to employees.

On 11 December 2023, the union applied to Fair Work to deal with a dispute involving their members employed on part-time arrangements by Elderly Care Limited (Elderly Care) at its Bundaberg Tricare facility. The employees are governed by two modern awards, the Nurses Award 2020 (Nurses Award) and the Aged Care Award 2010 (Aged Care Award).

The Nurses Award provides that before commencing part-time employment, the employer and employee will agree in writing to the guaranteed minimum number of hours to be worked and the rostering arrangements that will apply to those hours. The terms may be varied by agreement and recorded in writing.

If there is no variation, hours worked in addition to the agreed hours will be paid at overtime rates.

The provisions of the Aged Care Award are very similar.

In 2023, Elderly Care offered employees the opportunity to enter into IFAs, allowing part-time employees to agree to a variation of hours, with the agreement to be met verbally, in writing, or by contrast.

Significantly, the IFAs also allowed employees to bid for additional work, but they would only receive their ordinary rates of pay up to 38 hours per week rather than overtime as prescribed by both awards.

Although Elderly Care claimed that the acceptance of IFAs was completely at the individual employee's choice and discretion, the union produced various emails to staff indicating that additional hours would only be available to staff who had signed an IFA, and additional hours would be paid at the employee's ordinary rate.

In a somewhat scathing assessment, Commissioner Jennifer Hunt noted,

"It is highly improper for Elderly Care employees at the Facility to receive the ordinary time rate of pay whenever they bid for and are accepted to work additional shifts. To date, employees have been inexplicitly told they must sign an IFA … On the face of it, it would appear to me to be unlawful and unconscionable".

To temporarily resolve the dispute, Commissioner Hunt has recommended that Elderly Care agree to advise all relevant employees every two months in writing of their normal shifts and roster, the number of additional hours that may be available, and whether those additional hours will be offered at overtime rates.

For queries about awards, rostering hours, IFAs, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to [email protected]

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.