Can you Change a 12 year old Rostering Practice?

The question in this Employment Relations Authority (ERA)[1] case was whether the employer could change a roster system that was in place for 12 years, but wasn’t specified in the employment agreement. The employee claimed it had become an implied term and couldn’t be changed.

The employee was a nurse with the Department of Corrections for over 12 years. She was told at her original interview that she could ask for 4 ‘shift requests’ per roster. The employee had raised the issue over the period of her employment and was told on three separate occasions there was “no right as such to shift requests”.

The employee requested that she be rostered on morning shifts throughout April due to Ramadan. Three weeks later, in late March, the employer advised the staff that due to “constant concerns” over the roster they would be moving to a rotating roster shift system. Employees could swap shifts between themselves if they wanted to.

The employee claimed there was an implied term allowing shift requests in her employment agreement with the employer. She raised a personal grievance on the grounds that an unjustified action of the employer caused her disadvantage. She also sought remedies for a claim of breach of good faith.

The ERA found that although it was finely balanced, the “shift requests arrangement did not reach the point of becoming a term established by custom”. It considered:

• The arrangement had been in place for at least 12 years.
• There was “some certainty about the practice”.
• The employee’s manager had told her there was nothing in the collective agreement that stated that the employer had to accommodate roster requests.
• It was not a term in the collective agreement and there were no written details of the arrangement.
• Some benefits that continued for years have been found to only be a privilege.
• A message from a union delegate showed the union considered the arrangement was within the discretion of the employer.
• Although there was an argument that the arrangement had sufficient notoriety, the employer had resisted the arrangements becoming a term of the agreement.

The ERA found the employee did not suffer a disadvantage. However, it found that the employer had breached good faith for failing to consult before introducing the rotating roster. The breach did not result in a penalty being ordered.

The key lessons in this case are that even where a practice has been happening for years, (depending on the specific circumstances) that practice can be changed by the employer, however before making the change the employer must consult with employees.

[1] Bhamji v Chief Executive of the Department of Corrections [2024] NZERA 70