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Ask Deborah Awyzio Your Own Question
Deborah Awyzio
Deborah Awyzio, Solicitor
Category: Australia Law
Satisfied Customers: 863
Experience:  Bachelor of Laws (QUT), BIT (QUT), Family Law Accredited Specialist, over 12 years experience
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My employer has changed my roster from 8/6 to 14/7. We had a

Customer Question

Hi,
My employer has changed my roster from 8/6 to 14/7. We had a 145A consultation where I told them under section 62 3(b) I have to refuse to do the additional hours as I have a court ordered custody arrangement for my 2 children for the 6 days fortnightly to suit my 8/6 roster.
My employer has now:
1) Cancelled my 8/6 roster.
2) Cancelled all flights on my fly in/ fly out days.
3) Told me that they want me staying with them so I have to come back to work on a transitional basis. They said I have 3 months to change my final court order and transition to 14/7.
4) Told me that to transition I must drive myself out the 600km round trip in my own vehicle as they have cancelled my fly day to save money. Everyone else on site is able to fly.I was constantly told to see HR and my supervisor about my family responsibilities. I saw HR many times and they told me I was on the redundancy list each time as the new roster would not suit. I tried to discuss it with my supervisor at least a dozen times but he told me every time that head office do not care about my issue, they already know who they want to get rid of if a redundancy was ever to come up and if I try to fight it they have a huge legal team that I have no chance against.
I also told my supervisor that I cannot quit as my home mortgage insurance does not cover my loan after voluntary cease of employment so I will loose my family home. He said to get myself fired so I can keep my insurance and suggested coming to work drunk.......
I have lodged a Form8C with the FWC and have a hearing this week. I have called them on breaches of sections 343, 344,351 & 355.
I am very nervous as I'm representing myself as I am still paying for the child custody fees. Do you think I have a good case for the FWC? And do you have any other tips?
Submitted: 9 months ago.
Category: Australia Law
Expert:  Leon replied 9 months ago.

Good Morning

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advice but a guide to assist you.

Are you under an award or Agreement?

What do you mean you expect a settlement?

Can you email me your employment contract?***@******.***

Customer: replied 9 months ago.
I will attach my contract. Where it says they can vary our hours we are under the understanding that this was for training, shutdowns, etc, which we come in a day early or stay a day longer or change to nightshift to suit the occasion. Not change us to 14/7, especially without any compensation at all. My problem is though, I cannot change and they know that. I lodged the forms to get help and now I have a case hearing.
Expert:  Leon replied 9 months ago.

Good Morning

I will look at it.

Have you had the phone mediation with FWC?

Customer: replied 9 months ago.
No, they just said I have a case hearing this Friday. MMGs response is full of false information.
Expert:  Leon replied 9 months ago.

It is not a full blown hearing it is an attempt to try and have you and your employer reach an agreement.

Customer: replied 9 months ago.
That's a relief, though if you have any tips it would be greatly appreciated
Expert:  Leon replied 9 months ago.

Good Afternoon

I have had a quick, look at the agreement.

Firstly it clear says at paragrapn 1 on page 2 that

MMG may, after consultation with you make any changes to your job, titl, duties, location and reporting relationship as are reasonably necessary for the proper conduct of its business.

Also at page 4 under hours it says (Subject to change by MMG)

Further at page 6 under the heading hours of work the last sentence again says MMG will consult with you if your hours of work are required to change, however MMG retains the right to vary your rostered hours or shift roster from time to time

In both cases they have to consult they cannot impose it on you.

Having said this when you reached your agreement in the Family Court had you at anytime spoken with your employer and got any guarantees about your hours staying as they are. This is important.

If not then have they consulted with you and tried to find anything to allow you to keep working the hours and is everybody else in your area getting the same change?

They can change the hours the law lets them but they have to consult, and if possible work with you.

Have you looked at cases that have been decided under the sections you have raised?

Customer: replied 9 months ago.
My supervisor was constantly aware of my family court positions. He knew exactly what I was working towards in regards ***** ***** time with my children. Although I have nothing from MMG to guarantee my hours will stay as they are. We did have a consultation, though I was told by the engineering superintendent holding the consultation that MMG will still do whatever they want and the mine is not stable. MMG told us if we have any concerns still about the new roster to see our supervisors before the change. I did that many times but was 'flogged off' every time.
The redundancy in my area went to a guy that could have stayed, there was no reason to get rid of him. I was told that I am a very efficient and valued worker so they were not letting me go.
I've been searching for similar cases but I'm not sure where to find them so haven't had much luck so far.
Customer: replied 9 months ago.
Our hours are varied all the time as we have breakdowns at the end of the day almost weekly. We always do extra hours and this is how this section has always been put across to us. If we knew they could change our roster from 8/6 to 14/7 travelling in our own time, and one of the 7 days is on site during shift change, nobody would have agreed to it.
Expert:  Leon replied 9 months ago.

Good Afternoon

There is no restriction on when they can change your hours.

The fair work act is at the following link

http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/

Click on the sections you are referring to and at the top you will see items in [ ]

click on the one [Noteup]

This will give you a list of cases , if any that have been decided on each section and you can see what the courts decide.

This is what we do and see how the situation compares to your current one.

If you can show that MMG was aware of your family law court proceedings and they lead you to believe that you can settle because your hours would not change.

I hope this all makes sense?

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