You must first check your written employment contract for an explicit deadline that allows your employer to change your working hours and working hours. In the absence of such a clause, your employer runs the risk of violating the employment contract. Your employer cannot unilaterally change your contract: see Abbott v. Hospital for Women and Children Inc., 2003, 86 SASR 1, [34]. In addition, you are not obliged to accept a change proposed by your employer: see Howtrac Rentals Pty Ltd v Thiess Contractors (NZ) Limited [2000] VSC 415, [417] –[424]. The contract must state that these policies and procedures are not contractual terms and conditions and may be amended or updated from time to time. If you believe that your employer has changed your hours of work because you have exercised a right in the workplace (taking annual leave, taking paid personal leave, filing a complaint or request in the course of your employment, etc.) or a personal attribute (sex, pregnancy, age, race, etc.), your employer has effectively taken an adverse action in response to that right in the workplace or to these personal characteristics. Discrimination. Please seek legal advice when you file an application for general protection. You should pay particular attention to the wording of the contract, including the „Policies and Procedures“ and „Entire Agreement and No Trust“ clauses, as well as to the terms of the directive itself and the circumstances and context that accompany it. For example, were verbal representations made? Were you shown the policies before or after the contract was signed? Ultimately, the question is what a reasonable person would think.
Does the contract and the context lead a reasonable person to believe that the common intention of the parties was whether the policies were part of their employment contract or not? The Fair Work Act 2009 (Cth) now requires that consultations on changes to lists or working hours be included in modern rewards. Subsection 145A(1) states that a modern allowance must include a term that „requires the employer to consult with employees about a change in their regular list or hours of work.“ In addition, subsection 145A(2) describes: A clause in employment contracts that requires compliance with policies and procedures gives employers more flexibility to address issues that may develop as a result of technology, business practices or social expectations. An employee may choose to accept a change, and many contractual terms are of course changed from time to time by mutual agreement, for example, a salary increase, it can be difficult for employers to implement new conditions or agreements with existing employees, especially if the goal is to protect or favor the company without the employee obviously benefiting from it. However, there are some things you can do to manage the situation and overcome an employee`s reluctance to sign an important agreement. When an employee is on leave under the Family and Medical Leave Act (FMLA), the law protects an employee`s work responsibilities, schedules and workplace by prohibiting changes that include: altering the essential functions of the workplace to exclude taking leave; Reduction of working hours in order to avoid employee authorization; the transfer of the employee to another position to prevent the employee from taking time off; or otherwise constitute a difficulty for the employee. Upon returning from FMLA leave, employees must be transferred to their place of work or equivalent. An equivalent position is a position that is virtually identical to the employee`s previous position in terms of compensation, benefits and working conditions, including privileges, benefits and status. It includes the same or substantially similar tasks and responsibilities, which involve substantially equivalent competences, efforts, responsibilities and powers. The employee generally has the right to return to the same shift or similar or equivalent work schedule. The FMLA does not prohibit an employer from complying with an employee`s request to reinstate another shift, schedule, position or location that better meets the employee`s personal needs upon returning from vacation, or to offer a promotion to a better position. However, an employee cannot be persuaded by the employer to take a different position against the employee`s will. However, the definition of obligations in a signed contract modifies the agreement between the parties.
This means that when reviewing an employee`s compensation, it may be a good time to review your employment contracts and, if necessary, create new contracts to include the necessary changes. An unauthorized unilateral change is likely a violation of the employment contract, and the fact that the employer has informed you of the change will not make it legal. However, if you accept the change without protesting, chances are you have implicitly accepted the change and lost your right to oppose it. Your normal working hours can be described in detail in your employment contract or defined as your foreseeable weekly working hours. At the beginning of the work, you would have accepted this structure of working time, even if working time was not the subject of direct negotiations. In some situations, employers may try to convert those hours into hours that aren`t right for you. Distributing an agreement without explaining the context or context could contribute to Andrea`s reaction in this scenario. This is a difficult question that depends largely on your particular situation. Due to the ambiguities surrounding this issue, we recommend that you include everything that is of fundamental importance to you in your employment contract. As well as compliance with all these guidelines. If a policy and applicability issue arises, you should seek our help in analyzing your particular situation. Your employer has an implicit contractual obligation to clearly explain the effects of a change, such as a change in wages or work schedules.
You can include in your employment contracts a requirement that employees comply with practice policies and procedures. If your employer changes your normal hours of work or list without consent or discussion and without the express right to do so under the contract, you may be able to seek disguised termination and/or damages for losses suffered in connection with a breach of contract claim. As a result, an employer cannot force or require an employee to sign an amended contract. If the change involves the cancellation of a benefit, it is more likely that an employment court will consider that your employer acted fairly if it offered something in exchange for the change, e.B. and gave sufficient notice before the change took effect so that employees can plan ahead. If your employer terminates your contract on the grounds that you are unable to meet the new requirements without your consent, consultation, notice, reasonable time and procedural fairness, you may be able to sue for wrongful dismissal. Please seek further legal advice to determine if this claim is right for you. Formulate commitments, such as . B respect for privacy and confidentiality, in a signed contract is the best way for an employer in such a scenario: it gives the employer the flexibility to unilaterally update policies if necessary – although it is always best to do so in consultation with your team when possible.
Recital [74] of The Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd [FWCFB 7447 of 2014] also states that the consultation must be genuine, not mechanical or formal. It`s not just about advising the employee on a change and willingness to ask questions. In addition, consultation must take place prior to any proposed amendment. Whether a company`s policy is part of its employment contracts with its employees is boring and largely depends on the circumstances of the individual case. The test is objective and the Court will consider what the language used in the context would have led to the presumption that a reasonable person believes. [1] In addition, changes in hours and service made in retaliation for workers exercising their labour rights – such as.B. file an employee compensation claim, take FMLA leave, file a complaint for wages or discrimination, denounce, etc. – violate the protection of workers under these laws.
And certainly, changes based on illegal discrimination (i.e., only women have reduced their hours or reduced their authority) would be illegal. .