Are there some circumstances in which a part-time employee may temporarily work full-time hours. Consider this example: a full-time employee will be absent on unpaid parental leave for about three months. A part-time employee in the same department, who performs different duties, will be seconded into the full-time role to cover the parental leave.

The employee being seconded will be required to work five days a week for a three-month period. The part-time employee is currently paid the same hourly rate as the employee taking parental leave.

Must the employer change the contract of employment to state that the role is full-time for a period of three months (or the period of the parental leave), or ensure the seconded employee is receiving overtime for the additional day worked for a three-month period?

 

Changing a contract of employment

The employer does not have a unilateral right to change any term of a contract of employment unless the employee agrees. The terms of the contract would need to be changed (with the employee’s agreement) to full-time if hours worked in excess of the current part-time hours are to be paid at the ordinary time.

There is also an obligation on the employer under the National Employment Standards to notify the replacement employee of the temporary nature of the work.

 

Check the relevant modern award

It is also pertinent to check the relevant modern award. For example, if these employees were covered by the Clerks - Private Sector Award 2020, clause 10.2 states that changes in hours may only be made by agreement in writing between an employer and an employee. 

The agreed changes should also refer to the temporary nature of the full-time work arrangement. Changes in days can be made by an employer by giving one week’s notice in advance of the changed hours.

If the terms of the current contract of employment remain unchanged, the employee would be entitled to payment at the appropriate overtime penalty rate prescribed by the award for hours worked in excess of their part-time hours.

 

Replacement employee - parental leave

The Fair Work Act (s84A) requires that before an employer engages an employee to perform the work of another employee who is taking unpaid parental leave, an employer must notify a replacement employee:

  • that the engagement to perform that work is temporary
  • the rights of the employer and the employee taking parental leave with respect to a right to cancel the leave if the pregnancy ends other than by the birth of a living child
  • the return to work guarantee, and
  • the right of the employer to require the employee taking parental leave to return to work if the employee ceases to have responsibility for the care of the child.

 

The bottom line

The employer does not have a unilateral right to change the terms of a contract of employment but changes can be made with the mutual agreement of the parties. Any change to the contract should be in writing. Reference should also be made to the terms of the applicable modern award where the employer seeks to change any condition of employment.