Roster Flexibility Decision in Employees’ Hands

AWU v EDL Group Operations Pty Ltd [2013] FWC 6733 (1 October 2013)

Sometimes a provision in an enterprise agreement, made in good faith, can come back to bite. A Western Australian company has found this out the hard way. In its EBA, it agreed to only change rosters “by agreement between the Company and the majority of the employees affected by the change”. In practice, that “agreement” was not forthcoming. And an arbitrated decision of Fair Work Commission has upheld the need for that agreement to be reached before rosters could be changed.

The company operates a roster based on eight days on, six days off. It wanted to change to a five/two roster, but a majority of employees did not agree. The company relied on another section of the EBA which said “Operators shall comply with the Company’s reasonable requests with regard to roster arrangements”. The company argued this general provision overrode the other prescription, the specific. However, rightly, FWC rejected this out of hand as the legal principle is the exact opposite – the specific overrides the general prescription.

The rationale behind the development of the EBA clause was canvassed extensively in the case and did not demonstrate any serious support for the employer’s contention that the rosters could be changed in the way the company desired.

The issue here is the need to think ahead when drafting clauses of this nature, to ensure that wherever possible, decisions about fundamental operational issues are not left to chance. In this case, the company obviously needed to try something different and has been thwarted by its own acquiescence to permit management decisions to be abrogated to the majority of employees. The rosters in most workplaces are essential, so management must think very long and hard before surrendering that responsibility.