New flexibility for the retail industry

In a recent Fair Work Commission variation to the General Retail Industry Award (Award), Retail employers and their part-time employees will be able to agree to extra hours by text message or email. This variation enables both employers and employees to make temporary or continuing changes to the employee’s regular pattern of work. Additionally, the variation includes a review of guaranteed hours.

Below are parts of Clause 10 – Part-time employees that reflect the new variation.

10.6 Changes to regular pattern of work by agreement

The employer and the employee may agree to vary the regular pattern of work agreed under clause 10.5 on a temporary or ongoing basis, with effect from a future date or time. Any such agreement must be recorded in writing:

(a) if the agreement is to vary the employee’s regular pattern of work for a particular rostered shift – before the end of the affected shift; and

(b) otherwise – before the variation takes effect.

NOTE 1: An agreement under clause 10.6 could be recorded in writing including through an exchange of emails, text messages or by other electronic means.

NOTE 2: An agreement under clause 10.6 cannot result in the employee working 38 or more ordinary hours per week.

EXAMPLE: Sonya’s guaranteed hours include five hours work on Mondays. During a busy Monday shift, Sonya’s employer sends Sonya a text message asking her to vary her guaranteed hours that day to work extra hours at ordinary rates (including any penalty rates). Sonya is happy to agree and replies by text message confirming that she agrees. The variation is agreed before Sonya works the extra two hours. Sonya’s regular pattern of work has been temporarily varied under clause 10.6. She is not entitled to overtime rates for the additional two hours.

10.11 Review of guaranteed hours

(a) If an employees’ guaranteed hours are less than the ordinary hours that the employee has regularly worked in the previous 12 months, the employee may request in writing that the employer increase their guaranteed hours on an ongoing basis to reflect the ordinary hours regularly being worked.

(b) An employee may only make a request under clause 10.11(a) once every 12 months.

(c) The employer must respond in writing to the employee’s request within 21 days.

(d) The employer may refuse the request only on reasonable grounds.

EXAMPLE: Reasonable grounds to refuse the request may include the reason that the employee has regularly worked more ordinary hours than their guaranteed hours is temporary – for example where this is the direct result of another employee being absent on annual leave, long service leave or worker’s compensation.

(e) Before refusing a request under clause 10.11(c), the employer must discuss the request with the employee and genuinely try to reach agreement on an increase to the employee’s guaranteed hours that will give the employee more predictable hours of work and reasonably accommodate the employee’s circumstances.

(f) If the employer and employee agree on an increase to the employee’s guaranteed hours, the employer’s written response must record the agreed increase.

(g) If the employer and employee do not reach agreement, the employer’s written response must include details of the reasons for the refusal, including the ground or grounds for refusal and how the ground or grounds apply.

NOTE: If the employer and employee agree in writing to increase the employee’s guaranteed hours, this will vary the agreement under clause 10.5.

(h) The employer and employee may seek to resolve a dispute about a request under clause 10.11(a) in accordance with clause 36—Dispute resolution.

NOTE: This could include a dispute about whether the employer’s refusal of a request was reasonable, whether the employer discussed the request with the employee as required under clause 10.11(e), or whether the employer responded in writing to the request as required under clauses 10.11(c), (f) or (g).

This article has been prepared for information purposes only and is not legal advice. For legal advice regarding your specific circumstances, please contact Workplace Resolutions directly on (03) 5499 6131 or by email at admin@wrhr.com.au

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