Wording of Agreements Needs Great Care

When making an enterprise agreement, an employer thought it had covered off the issue of rostering for all employees, regardless of their status. But some part-time employees had other ideas. It took an appeal for the company to be assured of access to what it thought its enterprise agreement contained.

The enterprise agreement has a separate part-time employment clause which includes the requirement that on engagement, the employer and employee must agree on the number of hours per week and “the rostering arrangements”.

But a disagreement arose over what those words “rostering arrangements” mean. Do they mean the number of hours per week or fortnight, where and when the roster would be posted and whether or not the employee could work more hours than they were originally hired to do, as the employer argued? Or do they mean more than that, like the specific days each week, definite and fixed start/finish times and no changes without the consent of the employee, as the union contended?

Initially, when the dispute process was undertaken in the FWC, the decision went against the employer. The Commissioner said the specific requirements of the part-time clause overrode the general rights of the employer to set the rosters whether the part-time employee agreed to a change or not.

The appeal bench noted that the actual employees involved had employment contract documents which specifically referred to the need for changes to actual start/finish times, and other aspects of the posted rosters. So the behaviour of the parties on the job was consistent with the employer’s interpretation of the term “rostering arrangements”. Importantly, the enterprise agreement did not refer to specifics like days of the week or start/finish times. The full bench upheld the appeal, allowing the employer to continue to access its rights under the enterprise agreement.

Enterprise agreement clauses that are critical to a business’ operations need to be worded to ensure they do what they’re supposed to do. Given that employees covered by an enterprise agreement have to be better off than if they remained under the award, it is reasonable that the employer will be looking for trade-off benefits in the enterprise agreement. If they’ve been negotiated, the business should be able to access them without having to go through two court cases to do so.

The lesson is that the old adage – the devil is in the detail – is as relevant as ever. The term “rostering arrangements” is vague. It is not surprising it became the focus of argument. Without corroborative material, this decision could have gone differently (and it took an appeal to get there). Careful drafting of key clauses not only delivers certainty for the parties, it also reduces the risk of expensive proceedings to secure what was actually agreed to, and paid for.


Bupa Care Services Pty Limited v New South Wales Nurses and Midwives’ Association [2017] FWCFB 1093 (20 April 2017)