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kmslaw, Solicitor
Category: Australia Law
Satisfied Customers: 209
Experience:  I have 15 years legal experience behind me and I graduated from the University of Sydney with First Class Honours in Arts/Law.
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My husband has an employment contract with BHP dated 2009.

Customer Question

My husband has an employment contract with BHP dated 2009. In his contract it clearly states that he will fly from site to Perth in the evening of his last rostered day and from Perth to sit on the morning of his first rostered day.
A few weeks ago he was told his flights were changed and he will now fly from site the day after his last rostered shift and from Perth to site the day before his first rostered shift.
He only received a written Intention To Vary Contract today.
What are his options as he does not agree to this change. No compensation has been offered and this contract has been in place for 7 years yet they now say his contract does not meet the departments standard practice that shift plus travel can't exceed 14 hours although there are other employees in the department that work 12 hours and fly out on same day and their contracts are not being changed.
Thank you
Submitted: 10 months ago.
Category: Australia Law
Expert:  kmslaw replied 10 months ago.

Hello my name is***** am a solicitor in NSW who will assist with your inquiry today. Do you have a copy of the initial contract with you? I want to have a look at the termination and variation clauses in it to see what they are allowed to do.

Please note that I have meetings today until 1.30pm Sydney time.



Expert:  kmslaw replied 10 months ago.

You can scan and attach the contract here for me to see.

Customer: replied 10 months ago.
I have attached contract.
Expert:  kmslaw replied 10 months ago.

Sorry for the delay in getting back to you Tracey. I'm looking at this now, will be with you in a moment.

Expert:  kmslaw replied 10 months ago.

Well it says the Manager can review the roster at any time in his contract so certainly the manager can review it but it would appear that as they are offering him an Intention to Vary Contract, they are wanting to vary the contract terms unilaterally, which really doesn't exist in contract law (so they would be in breach of contract and he could sue them for damages resulting from the breach, but they would have to be quantified). There is no variation clause in his contract but in any case a variation clause would usually say both parties need to agree. The unfortunate position he will find himself in though is that unless you can find some other reason that he is being say, discriminated against on the basis of race, disability, gender or some other protected ground he shall have to accept the new roster or be prepared to walk away from the job (or sue them whilst he still works for them, which is a bit untenable for anyone but has been done before). But if he finds the whole situation stressful because of the disparities in treatment, perhaps he should consider resigning and suing for unfair dismissal on the basis that he is being forced to resign. It really depends on whether he is being bullied or not into accepting new terms and finds it stressful to remain there.

I hope that gives you some idea of the way forward. If you need clarification let me know. Otherwise please rate my answer. Good luck.