Stephen Parsons (pictured), a PSA and HWU Delegate at Eastern Health, has won a major dispute at the Fair Work Commission.
Stephen’s win
Eastern Health were changing Stephen’s roster without 7 days’ notice, typically to have him start work earlier than he’d been rostered, but then refusing to pay him change of roster allowance. Stephen knew that wasn’t right, so he disputed it. When Eastern Health wouldn’t budge, with the help of the HWU, Stephen took his case to the Fair Work Commission (the Commission) and won.
On paper, Stephen’s case is about two occasions in 2023 when Eastern Health refused to pay the $24.97 allowance. In reality, the case is much more significant than that. Not just for Stephen, who had already gone without getting paid the allowance on many previous occasions but for his co-workers who Stephen knew were also affected. Employers failing to pay change of roster allowance is a frequent occurrence across the health sector.
That’s what HWU Delegates do. They raise their hand to stand up for their fellow Members, whether that’s in a conversation with a manager or at the Fair Work Commission.
Change of roster allowance for Victorian public sector Health and Allied Services, Managers and Administrative Workers
The Commission issued a decision in Stephen’s case that helps confirm the way that change of roster allowance operates under the Health and Allied Services, Managers and Administrative Workers (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2021-2025. That’s the Enterprise Agreement that currently covers the majority of our Members who work in the public health sector, across 87 different health services.
Under this Agreement, change of roster allowance is to be paid ‘Where the Employer requires an Employee, without seven days’ notice and outside the excepted circumstances…to perform ordinary duty at other times than those previously rostered’.
There are two exceptions where change of roster allowance doesn’t have to be paid – ‘emergency situations’ and where a part-time employee agrees to work additional shifts on top of what they’ve already been rostered. See clause 48 of section 1, on pages 55-56, for the full Rosters clause.
Key aspects of the decision
This case explored a common problem when it comes to change of roster allowances in workplaces – what does it mean to be ‘required’ to work a changed roster? What if my employer asks me to come in early and I agree? The Commission found that under this Agreement, an employee doesn’t to need to have been directed to work at a different time against their will. Instead, the allowance will be triggered where an employee agrees to a request to work at a time different to the time they were originally rostered, without 7 days’ notice (unless one of the exceptions apply).
The Commission explained the purpose of the allowance is that ‘absent the exigent circumstances described [the exceptions], an employee is to be compensated for the dislocation caused by working a changed roster absent the requisite notice. The dislocation caused is not lessened merely because the employee works pursuant to a request as opposed to a direction.’
In this case, Eastern Health tried to rely on the ‘emergency situations”’ exception. They blamed workforce pressures, including from staff being off due to Covid-19 and other leave, and unsuccessful recruitment efforts. The Commission acknowledged that ‘workforce pressures and staff shortages doubtless cause rostering difficulties’ but found this was not what was meant by an ‘emergency’ in the Agreement, so it wasn’t an excuse for not paying the allowance. An emergency, according to the Commission, is a ‘serious, unexpected, and often dangerous situation requiring immediate action’.
If anyone can appreciate what an emergency is, it’s health care workers! They are sick of hearing Covid-19 used as an excuse for not being paid properly.
Another important aspect of the decision is that the Commission held that casuals are not excluded from receiving change of roster allowance under the Agreement.
What’s next?
The HWU is seeking a full audit and backpay for all Eastern Health employees affected by non-payment of change of roster allowance. We have written to Eastern Health to make it very clear we expect them to fully comply with the Enterprise Agreement. We’re waiting for their response.
Remember, it’s what’s in your enterprise agreement that matters. Your workplace can’t have their own policy that contradicts your enterprise agreement, or tell you ‘it’s just not how we do things here’. Your Enterprise Agreement is a binding legal document. The HWU fights to ensure the enterprise agreements that we negotiate are complied with.
Need help?
If you believe you’ve been underpaid change of roster allowance, in the first instance you should email your manager/supervisor to report the issue. Always ensure pay queries are in writing.
Please also keep in mind, this article and the decision mentioned relates to a specific enterprise agreement in the public sector. If that’s not your enterprise agreement, keep in mind that the rostering provisions of your enterprise agreement or Modern Award may work differently.
Not sure what your entitlements are? Reported an underpayment but it’s been ignored or rejected? HWU Members can contact us for assistance on (03) 9341 3300 or via email at [email protected].