Of all employment types, part-time employment is the category with a notorious reputation for being inflexible and includes intricacies that, if not watched carefully, can catch employers out with unforeseen consequences. Consider this example, and how you would deal with this situation in your business:
Jessie calls in sick the night before her rostered shift. You call another employee, James, who agrees to take the shift. James is a part-time retail assistant employed under the General Retail Industry Award 2020 (Retail Award).
Would you pay James at his ordinary rate of pay for this shift? Or should the additional shift be paid at overtime rates? Is a phone call a satisfactory record? We unpack this below.
Regular pattern of work and guaranteed hours
At the outset, we know that James is a part-time employee under the Retail Award. On engagement, he should have a written agreement with his employer specifying his regular pattern of work (in accordance with clause 10.5 of the Retail Award), including:
- hours of work on each day of the week (‘guaranteed hours’);
- the start and finish times on each day; and
- the times and duration of any meal breaks.
The Retail Award provides that this regular pattern of work can only be varied in writing. To enable James to work Jessie’s shift, his employer will need to take steps to vary James’s regular pattern of hours. Section 10.6 of the Retail Award stipulates that this must be done in writing:
- before the end of the affected shift – if the agreement is to vary the employee’s regular pattern of work for a particular rostered shift; and
- otherwise – before the variation takes effect.
What is considered ‘in writing’ is noted as including emails, text messages, or by other electronic means. This means that while James verbally confirmed his agreement to work the shift, this does not satisfy the requirement of the Retail Award. James’ employer would need to seek that he confirm his agreement either via email, text, or other written form.
Critically, James’s employer must keep a copy of these records for a period of seven years and must provide a copy of these records to an employee upon request.
If no written agreement to vary James’s hours is recorded, he will be entitled to have these extra hours paid at overtime rates.
Frequently asked questions
A range of hours?
Could James’s contract have a range of hours instead? Could the written agreement just say that he is ‘guaranteed 20 hours per week rostered in accordance with his availability and the needs of the business?’
No. While these arrangements may exist in other industries (such as the hospitality industry), because of the Retail Award provisions requiring hours to be fixed, this approach is not permitted. For James, even if such a provision were included in his employment contract, it would not be enforceable given it is not consistent with the Retail Award.
Swapping shifts?
What if Jessie wasn’t sick but simply wished to switch her morning shift with James who worked an afternoon shift? Would a written variation still be required? Yes. In this scenario, where shifts are on the same workday and of the same length of hours, a written variation would still be required. This is because clause 10.6 of the Retail Award stipulates that where “employers and employees may agree to vary the regular pattern of work […] such agreement must be recorded in writing”. The regular pattern of work (at 10.5) includes the guaranteed hours, the start and finish times on each workday, and time and duration of meal breaks.
Varying hours to avoid entitlements?
An employee’s regular pattern of work can’t be changed from week to week or fortnight to fortnight, or to avoid any award entitlements. If a roster is changed to avoid paying an employee a penalty, loading or other benefit, the employee must be paid the amount they would have been paid if the roster hadn’t been changed.
Review of guaranteed hours
Where a part-time employee has, over a twelve-month period, regularly worked more ordinary hours than their guaranteed hours, they can request an increase to their guaranteed hours.
When such a request is made, the employer must respond within 21 days and may only refuse the request on reasonable business grounds, similar to casual conversion, and any refusal must detail these reasons in writing.
Key takeaways
Ultimately, to meet their obligations, employers must ensure that part-time employees are not treated with the same flexibility as casuals.
Particularly when making small decisions regarding part-time employees, such as cancelling a shift, calling in an employee to work or changing their roster, employers may expose themselves to risk of wage non-compliance where a proper process is not followed.
If you have a question regarding part-time employees in relation to the modern award that applies to your business, call our Workplace Relations Hotline on 1800 RETAIL (738 245) to speak with one of our experienced workplace relations advisors.