When speaking with members, our staff often hear myths – or misunderstandings – about entitlements in their enterprise agreement. Branch Assistant Secretary Paul Gilbert sets the record straight on some of the most common myths. This month, he looks at myths about rostering and shifts.
The public sector agreement sets the benchmark for when we negotiate private employer agreements so the answers below may apply in private sector workplaces, but you will need to check your EBA to be sure. You can do so via the member portal.
Job Reps – keep an eye out in the new year for the Reading Your Agreement course, which is designed to help you better understand the structure, content and legal status of EBAs, as well as some of the basic principles for reading and applying EBA provisions.
Myths about rostering and shifts
Isn’t there something in the agreement that says I can’t be rostered to work an early shift on Monday if I did a night shift on Saturday?
You must have an 8-hour break between rostered shifts. With a night shift on Saturday, you do have an 8-hour break between that shift and the Monday early shift.
Some EBAs may contain a provision, typically in recognition of the fatigue implications, that precludes that kind of rostering.
I can’t be rostered to work this Christmas if I worked last Christmas, can I?
There is no law against it.
There is a law that states you must be requested to work on a public holiday, and that on reasonable grounds you can refuse that request.
When deciding if an employee will be rostered to work on a public holiday, employers must consider:
- the nature of the workplace
- the role and type of work of the employee does
- the employee’s personal circumstances (including caring responsibilities)
- employment status (full-time, part-time or casual)
- an expectation that they might be asked to work on the public holiday
- any overtime, penalty rates or other payment the employee might receive
- the amount of notice provided
- any other relevant factor.
An employer can require an employee to work a public holiday if the:
- employer has made a reasonable request for you to work the public holiday.
- you have unreasonably refused that request.
The request process can occur in a number of ways, for example in the public sector a health service would typically issue a draft roster stating who they are proposing work on a public holiday, essentially a request, and it is at that stage that an employee can decline the request, if reasonable.
My employer can’t tell me I have to work nightshifts more often, can they?
Probably. Most employees are contracted to work a certain number of hours, and the hours they are to work are determined by the roster.
Unless your contract is very specific about the shifts you are engaged to work, you are expected to work according to the roster set by your employer.
If it is a substantial change to your regular rostered shifts, they have to discuss it with you first. They have to:
- provide information about the change (for example, what the change will be and when)
- invite employees to give their views about the impact of the change
- consider your family and other responsibilities
- consider these views about the impact of the change.
EBAs can set out extra rules about changing rosters.
If you are on a written flexible working arrangements there may be other rules, and you should seek ANMF advice as soon as possible.
Isn’t there a bit that says because I’m over 55 I don’t have to work night duty?
Given how common this belief is, you could be forgiven for thinking there was such a provision. But strictly speaking there isn’t.
There is an entitlement to seek flexible working arrangements (FWA) if you meet one of the criteria, and being over 55 is a criteria (as is the more common criteria of having responsibility for children).
You could seek an FWA that excludes night duty, but your employer can refuse it on ‘reasonable business grounds’. Those grounds are not defined, but can broadly be described as ‘likely to result in a significant loss in efficiency or productivity, or would have a significant negative impact on customer service.’
If you make the application in writing, your employer is obliged to respond in writing within 21 days, including its grounds for refusal (if they do refuse). If refusal is likely, your employer must seek to discuss this with you within the 21-day window, to see if there are mutually acceptable adjustments that can be reached.
See the previous myths debunked by Paul.