You can unilaterally (i.e. – without the employee’s consent) change elements of a job if it is permitted in the employee’s:
- employment contract;
- modern award; and/or
- enterprise agreement.
If the employee has an employment contract, you must check the wording under that contract to determine if the change is permitted.
You will need to examine:
- the actual words of the contract;
- the purpose of employment; and
- any surrounding circumstances of the employee that you are aware of.
In certain circumstances you may expect an employee to perform tasks that are outside of their normal work, as long as those tasks sufficiently relate to the employee’s job.
For example, if a senior manager was directed to man the reception, this would likely be considered an unlawful direction because it is substantially below the senior manager’s skill level.
But an employer could require an employee who normally worked between 9am and 5pm to start work at 8am on a day a breakfast seminar is being held.
How a change should be formally implemented
If you have the right to make the change, or the employee has agreed to the change, this should be in writing.
Any document in relation to the change should be signed by both the employee and an employer representative.
Depending on what the existing contract of employment specifies, you may be required to provide the employee with a brand new employment contract, or simply a letter setting out the changes and how they affect the employment contract.
Any document should record:
- the changes to the position;
- how the changes will impact the employee’s salary and other entitlements; and
- when the changes come into effect.
Consultation with the employee is critical
You may have a legal obligation under the employment contract, enterprise agreement or modern award to consult with your employees about any changes to their jobs.
For example, the consultation clause in all modern awards requires employers to hold discussions with employees about changes ‘as early as practicable after a definite decision has been made by the employer to make the changes’.
If you breach a modern award consultation term, your company may be liable for a penalty of up to $63,000 per contravention, while you as an individual may be liable for a penalty of up $12,600 per contravention.
Before implementing a change to an employee’s job, you should consult with them on the following:
- what the business is considering changing;
- the reasons for any changes;
- why the proposed changes are reasonable in the circumstances; and
- the steps the business has taken to minimise any adverse impact on the employee.
It is important that you set out the reasons for the changes in detail, as this will go towards protecting you from any subsequent claim of discrimination or adverse action.
Give the employee a chance to respond and consider their response carefully before implementing the change.
Also address any concerns or queries they may have. Set out the employee’s questions and the business’s response to those questions to demonstrate that you have complied with your consultation obligations.
lf, after a period of consultation, the employee understands and accepts the changes, you should ensure that the changes are documented and that the employee signs the document as evidence of their acceptance.
The legal risks of changing a job
An employee may bring a legal claim against your business if you do any of the following:
- Fail to consult with the employee about the change —this could be in breach of an industrial instrument, such as an enterprise agreement or modern award.
- Make the change for an unlawful reason (i.e. a discriminatory reason) —the employee could bring a general protections or discrimination claim against the business.
- Make a change that significantly disadvantages the employee — again, this could lead to a discrimination/general protections claim.
- Put the employee at risk of an injury (mental or physical) by implementing the change —this could lead to a personal injury and/or WorkCover claim.
- Discipline or dismiss an employee for failing to comply with the change — this could lead to an unfair dismissal or general protections claim.
If the employee is covered by a modern award or an enterprise agreement, ensure that you are complying with the relevant consultation/procedural requirements before implementing the changes.
Keep detailed file notes and a clear paper trail about discussions you have had with affected employees and your responses to any of their concerns. It is also important that you record the reasons for implementing the changes to be able to defend any claim of discrimination.
7 questions to ask yourself before you change an employee’s job
Before making a decision to change an employee’s job, you should ask the following questions:
- Is the change permitted in the employee’s contract, enterprise agreement or modern award?
- Can you justify the need for the change?
- How will the change affect the employee on a day-to-day basis?
- Will the change have any major impact on the employee, e.g. will they need to change caring arrangements for their children or another family member?
- Have you considered the employee’s personal circumstances?
- Is the change a permanent change to the role or is it only a temporary measure?
- Have you identified possible risks/legal issues with proceeding with the change?
10 things you must do to meet your consultation obligations
If you decide to change an employee’s job, you will need to do the following to ensure you have met your consultation obligations:
- Make it clear that you are open to consulting with the employee before the changes are implemented.
- Give the employee a letter confirming what has been discussed regarding the changes (in a face-to-face discussion if possible).
- Clearly outline how the employee will be affected by the changes.
- Tell the employee about the steps that you have taken to try to mitigate any adverse impact on them.
- Advise the employee of an expected start date for the changes.
- Give the employee an opportunity to consider the changes before they come into effect.
- Ask for the employee’s feedback on the proposed changes.
- Allow the employee to bring a support person to any meeting where you have discussed these changes.
- Carefully consider any questions or concerns raised by the employee in relation to the changes.
- Confirm the changes to the employee in writing, setting out the details of the changes and the reasons for them.