As COVID-impact resignation rates continue to soar, and businesses struggle to recruit in a crazily tight candidate market, the ability to restructure your workforce and redistribute workloads, either temporarily or permanently, is crucial. Like never before employers need to know the extent to which they can unilaterally change an employee’s role to either include additional responsibilities, extend working hours or reassign employees to a different role altogether. It’s long been thought that businesses can swap and change duties of employees at will but it’s not that simple. And, we know how important it is to have flexibility with your workforce and it’s definitely a minefield, so here are a few things to keep in mind if you are wanting to change your employee’s role structure and duties.
Consider the employee’s employment contract. To provide flexibility in this area, the contract should include some well-drafted wording to ensue any change to an employee’s position will not constitute a breach of contract.
While a strong flexibility clause may support changes to an employee’s role, there is still a risk that changes of the inherent nature of the role could constitute a repudiation of the entire employment contract. Further, major changes of duties could mean that the original position held by the employee is actually deemed redundant, which could create an obligation for you to treat the change as a redundancy, with the associated (big $) costs.
These are vital in managing any workforce efficiently, but poorly worded PD’s can lead to issues down the track when you need to change an employee’s duties. We recommend having a high level, well structured PD for every role that outlines the key result areas and accountabilities with enough detail to assess and set out the job without being so prescriptive that you can’t change it. Its a fine balance but one we are well versed in.
Relevant Award & Agreements
In conjunction with the employment contract, consider the impact of any relevant modern awards and enterprise agreements. Some awards require that employees and their representatives be consulted if there is a proposed change to employee regular rosters or ordinary hours, or if there is a major workplace change that will have significant effects, such as job restructuring.
Once you have considered the contract and other relevant industrial instruments, work closely with your employee. The best way to avoid issues, is if they actively agree to the change. Consultation is key!
Show Me The Money
But wait… even in this happy scenario, employers have may have additional financial obligations to employees who take on different or extra work. A change in duties could mean that an Award employee moves up a classification to a higher pay rate. Even if it’s only a temporary change, you could become liable for ‘higher duties’ allowances.
For employees who are not covered by an award or enterprise agreement, be mindful that additional hours over 38-hour week, or outside of ordinary hours result in overtime obligations, and may not be considered ‘reasonable additional hours’. These may also impact on any annualised salary obligation you might have.
Work Health and Safety
Employees working long hours or carrying excessive workloads are at risk of fatigue and burn-out, which can impact on their physical and mental well-being. Make sure you undertake risk-assessments to ensure any new arrangements are safe and sustainable.
If you are looking to restructure within your business to address the type of people challenges that seem to be plaguing many employers right now, fear-not, help is at hand! Reach out to HR Gurus before you act, and let us clear your path, because the last thing you need right now is even bigger problems!
Written by Louise Betts, HR Guru and Lead Investigator