In another case of a flexibility provision being used against an employer, Fair Work has rejected an employee’s claim to work rosters that suit his personal needs. The employee used a clause in the enterprise agreement which committed his employer to “have regard for the family responsibilities” of employees when setting rosters.
The employer had changed the employee’s rosters within the agreed parameters that rostering could take place as the needed his skills at certain times.
The employee’s union, assisted by counsel, took the company to FWC to try force the company to let the employee remain on the rosters that suited him. The union argued the employee was “entitled” to the rosters he was currently working on as they dove-tailed with his wife’s work, thereby supporting the couple’s decision to have only family members look after their children.
However the company argued, successfully, that the employee had particular relevant skills and experience that justified his attendance, as distinct from other personnel, at the new times he was required. The company said that the employee was effectively demanding a fixed roster, a situation totally at odds with other EA provisions about the need for the company to be responsive to customer demand. His claim also undermined several other requirements that were well known to all employees about the need for such responsiveness, and hence changes to rosters.
This case is another example of the risks associated with agreeing to flexibility provisions which attempt to balance the parties’ needs, but are turned against the employer as if of right. This is especially so when the disputes settling clause allows a third party to intervene.