THE Fair Work Commission (FWC) has warned that employees cannot be compelled to sign new contracts, after a worker was found to have been unfairly dismissed for not agreeing to a new contract with additional unpaid hours of work and an on-call roster.
A former IT professional of Hazeldene Chicken Farm in Victoria was dismissed from his position after refusing to sign a new agreement increasing work hours from 1,976 per year to 2,340 per year without additional payment.
In addition to the increased working hours, the new contract also stipulated that the employee must be on-call for a period of at least 13 weeks each year, for which attracted an additional $77 in penalties per week.
The new agreement was proposed after the worker took a period of annual leave, during which he refused to answer phone calls from the employer.
The worker sought negotiation around the proposal for an on-call roster, but was later dismissed for refusing to accept the proposed contract, prompting the former employee to lodge an unfair dismissal claim.
Heard before the Fair Work Commission, the employer argued the worker had been dismissed for refusing to follow a lawful direction to carry out on-call duties.
However, Deputy President Gooley rejected the argument.
“[The employee] could not be compelled to vary the terms of his contract of employment. He could not be compelled to participate in what was called the ‘on-call arrangements’ which was the proposal set out in the proposed variation to [the] employment contract,” DP Gooley said.
“[The proposed contract] significantly changed hours of work, removed the annual leave loading and required [the employee] to participate in an on-call roster. The direction to agree to these terms was not a lawful or even reasonable direction.
“[The employee] could not be compelled to agree to contractual terms simply because other employees agreed to those terms. What [the employee] could be compelled to do was to comply with his existing contract of employment. He could be required to work reasonable additional hours.”
The Fair Work Commission ruled in favour of the employee, awarding compensation of $7,125.
Implications for Employers
This decision from the Fair Work Commission is a significant reminder to employers about the complex nature of new employee contracts, particularly where changes to working hours are proposed.
Fundamentally, employees cannot be lawfully directed to accept contracts which include significant increases to hours worked without additional remuneration. It should also be noted that refusal of a proposed contract is a workplace right.
Additionally, ordering an employee to work significantly outside of their contract is not a lawful direction, including orders to accept after-hours phone calls or participate in an on-call roster.
AREEA members should approach all instances of dismissal with caution and seek out advice and guidance from our workplace relations experts. Contact your local AREEA office for more information.
