“Bank of Hours Clause” – Have Bunnings showed us the way?
Major hardware retailer Bunnings is currently in consultation with the Shop, Distributive and Allied Employees Association (SDA) and the Retail and Fast Food Workers Union (RAFFWU) in relation to a ‘Bank of Hours’ clause under its existing Enterprise Agreement. The clause allows Bunnings to implement a practice whereby staff are sent home early during slow periods and subsequently make up the hours during peak times of trade.
Such a practice would be of great assistance to many companies who are in seasonal or have in flux clientele. Off the top of my head – landscaping, consulting, shopfitting, retail and manufacturing would be able to utilise such a clause to run their business at much more viable levels.
The practice relies upon s 63 of the Fair Work Act 2009 (Cth) (the Act) which allows awards and enterprise agreements to average hours over a specified period, but not exceeding a weekly average of 38 hours for a full-time employee or the ordinary hours for a part-time employee. Additional hours worked in a week are subject to the usual requirements, the most relevant being:
- Risks to employee health and safety;
- The employee’s personal circumstances and family responsibilities;
- The needs of the workplace or enterprise;
- The nature of the employee’s role and their level of responsibility;
- The usual patterns of work in the industry; and
- Any other relevant matter.
The nature of Bunnings’ enterprise means that it is often busier during holiday periods and in spring and summer. The ‘Bank of Hours’ clause ensures that Bunnings is capable of maintaining staffing levels that is appropriate to the requirements of its customers.
Whilst the Enterprise Agreement was strongly received by employees with a 93.7% yes vote from staff, the ‘Bank of Hours’ clause has come under scrutiny recently due to employee complaints that it creates uncertainty and affects their ability to spend time with their family as well as meet study requirements, as well as the difficulty of refusing additional hours. There are also concerns that the practice allows Bunnings to avoid paying significant overtime loadings given the averaging of hours.
Under s 62 of the Act, an employee can refuse to work additional hours if it is unreasonable taking into consideration the aforementioned factors. Nonetheless, the fact that hours are ‘banked’ in accordance with the Enterprise Agreement means that if Bunnings were to require those hours to be worked it would be likely to be reasonable. This is a key concern of employees given that they feel as if they have little ground to refuse additional shifts.
The Enterprise Agreement contains a number of conditions that are significantly above the General Retail Industry Award 2010, including the fact that full-time employees were paid 16.5% higher than the award rates. Nonetheless however, Bunnings has confirmed that it is reviewing feedback to ensure that it is capable of implementing optimal rostering processes.
NB Lawyers, the lawyers for employers can offer an obligation free consultation to discuss how we can assist you with any concerns you may have in relation to your staffing arrangements.
About the Authors
Jonathan Mamaril is the principal and director of NB Lawyers, the lawyers for employers, and a specialist in employment law. Over the last ten years, Jonathan has helped hundreds of employers understand their legal requirements, mitigate risk and liability, protect their reputation and achieve their goals for business growth and expansion.
Dan Chen is a lawyer at NB Lawyers, the lawyers for employers, and specialises in employment law. Dan is passionate about assisting business owners, small and large understand their obligations under Australia’s complex workplace relations system.