When an employer and employee first enter an employment relationship, the scope of their new position is generally the first detail agreed upon, including their key responsibilities and how these are required to be performed.

With the evolution of any business over time, it is sometimes natural for a position scope to evolve with the business needs. In other cases, changes in business circumstances may result in larger scale operational changes which could involve restructuring a position entirely.

What should a position description include?

Similar to an employment contract, a position description isn’t a required document by law. However, this is strongly recommended from a best practice perspective to ensure both parties have a record of exactly what was agreed upon and the expectations of the role. A position description can sit as an addendum to an employment contract or as a separate document, but importantly, it should highlight the main purpose of the role, responsibilities, and duties.

Depending on the nature of the position and the business, some factors to consider when building a position description may include: the roles key relationships; KPI’s and core deliverables; level of decision-making authority and autonomy of the role; access to budget; direct reports; key skills and competencies required for the employee to be successful in the role; and/or any qualification, training or certification requirement such as a Blue Card or accreditation in a certain field.

In conjunction with the position description, it is important that your employment contract contains specific wording about the duties and responsibilities of the role, to make clear the obligations of both parties.

We recommend employment contracts contain wording allowing the business to make minor and reasonable unilateral changes to an employee’s position in response to genuine business needs. We also recommend making it clear in an employment contract that an employee’s inherent responsibility will always be to adhere to and comply with the Policies and directions of the employer.

Why is it important to track position changes?

Although you may initially commence an employment relationship with a clear position description in place, it is likely that over time this may become outdated or not entirely represent their current role.

Whilst it may be difficult for an employer to track micro changes to a role over time where these occur organically, it’s important to keep a pulse on the evolution of an employee’s role for several reasons:

  • Award covered employees may have an entitlement to progress to higher classification levels or be entitled to be paid a higher duties allowance if they are required to perform work at a higher level
  • Understanding when an employee is outgrowing their role can be a useful for succession planning and retention, which can be imperative to reducing employee turnover due to lack of career growth or opportunities
  • Understanding if any duties have been superseded or if additional duties are required can be a useful way to track operational changes in the business and understand training and resourcing needs
  • Avoid disputes around position responsibility to foster a productive workforce

Reviewing your position descriptions periodically, especially in light of operational changes, means these can remain as up-to-date as possible – ensuring you always have clear goals and measurable expectations for your employees.

However, if an employer is considering making significant position changes, such as changes that would require the employee to be retrained or that remove/alter a major component of the role’s function, there will usually be a legal obligation to consult with affected employees.

How consultation obligations are impacted by law

Most Modern Awards contain a clause relating to consultation about major workplace change. These provisions impose strict rules on employers who make definitive decisions to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees.

These effects include but are not limited to major changes in the operation or size of the workforce or in the skills required; the need for employees to be retrained or transferred to other work or locations; job restructuring.

If employees are covered by an Award and these changes are likely to occur in a business, then the employer must give written notice of the changes to all employees who may be affected (including their representatives, if any) and discuss the following:

  • the introduction of the changes;
  • their likely effect on employees;
  • measures to avoid or reduce the adverse effects of the changes on employees.

These clauses ensure employers are facilitating timely and practicable discussions with their employees surrounding important changes to their employment. We recommend checking the relevant award for any additional or alternate requirements around these consultation procedures.

How to consult when minor changes occur

When minor changes do occur, these could be brought on by a wide range of different influences. As such, the approach to consultation will vary depending on the extent to which a position has been changed and the nature of how these changes have come about.

For less significant changes to a position, a business won’t need to follow a particularly rigid consultation process. Typically, in these scenarios, various duties will fall under the same umbrella of responsibility – for example, if a Receptionist role is required to complete “administrative duties”, this may range from taking phone calls, typing emails to writing complex reports.

As such, when a business is making minor changes, and these fall within the employee’s skill-set, it will generally be appropriate to meet with the employee to run them through the changes and what this means for them, including when they can expect the changes to come into effect and any expectations moving forward.

When higher level system or process changes occur, for example, the business adopts a new platform, it is likely the business will also need to consider any training and ongoing monitoring for technical issues that may inhibit the employee’s ability to perform their role.

A change management plan may also be necessary if the change will require an extensive upheaval of existing processes. Provided the employees key function and nature of their duties remain the same, there will not likely be a need to update the position description – unless, of course, software knowledge is an inherent requirement.

What happens when major changes need to occur?

When operational changes affect a major component of an employee’s position, a business should be cautious of making unilateral changes to an employee’s role. There are often a number of considerations the business will need to make and recommended processes to follow, in order to avoid the risk of any dismissal or adverse action related claims arising when making significant alterations to a role.

If a large responsibility or function of an employee’s role is being removed or altered (for example, due to outsourcing), the business will need to consider if the impact of this is that the employees role will be made redundant, and further, whether there will be an entitlement to redundancy pay (if they do not accept the new position, and the business is not excluded from paying redundancy pay under The Fair Work Act or Modern Award).

Generally, there will be a process to follow if the employee’s role is potentially being made redundant, which will differ depending on the particulars of the role and the employee, so we would recommend seeking further advice to ensure you manage this compliantly.

Significant adjustments to roles (i.e. reduction in responsibility or managerial responsibilities, even if pay remains the same) may still fall within the scope of a redundancy situation, or may carry other legal risks – especially if the employee was not genuinely consulted or agreed to the alteration. Hence the importance of ensuring you have followed a correct process when considering major changes and that any alteration is genuinely needed operationally.

Finally, an employee may be offered a new role as a promotion or recognition of service and talent. This may result in a significant alteration to their position as they take on new responsibilities, duties or move into a different area in the business. We recommend in cases of promotions that a business takes consultation as seriously as if they were hiring a new candidate ensuring the employee is aware of their expectations and agrees to these.

Generally, a business will not be able to unilaterally demote or significantly alter a role if the employee is not performing to the required standard in their new position, even if the contract states this! This may require formal performance management if the employee is not able to meet the expectations of their role. However, as mentioned, it may be necessary to seek advice regarding your exact situation to understand the risks associated and recommended path forward for managing this.

Other considerations

It’s important to consider that existing contracts may also provide legally binding conditions or benefits relating to positions – for example, some sales roles include a contractually agreed car and mobile phone entitlement. If an employee agrees to change their position however does not agree to remove any contractual benefits, the business will likely not be able to unilaterally remove these contractual benefits without the employees’ written consent.

The business could of course, however, advise the employee that offering a new position will come with a new contract under amended terms although the employee will need to agree to accept the new contract. If the parties do not agree on the new position terms, then the original position and terms would likely stand.

A business should also consider how a performance appraisal process can provide infrastructure around reviewing position descriptions on a regular basis to ensure these are kept up-to-date and accurate.

We have written previous articles explaining what a performance framework is and how to define and reinforce performance standards. Internal performance review schemes allow a business to use a position description as a tool to track and measure role development, and provide an expectation that the accuracy of an employee’s duties will be discussed on a regular or cyclical basis.

To summarise, it’s important for an employer to ensure they have:

  • Considered any obligations under a Modern Award around providing notice to employees and any representative they may have,
  • Provided clear context around what elements of the employee’s position are changing and why changes are occurring,
  • Outlined expectations of employees moving forward and provide training and resources if required,
  • Ask employees for their feedback around the position description and if they feel it accurately reflects their role,
  • Update a position description with any amendments and have both parties sign this,
  • Monitor and continue to check in with employees to assess any performance or process issues.

As there are many factors that can influence the evolution of an employee’s role within a business, we always recommend seeking professional advice specific to a business’s situation before proceeding with any definitive operational decisions.

If an employee agrees to a new position, regardless of how extensive the changes made to their role are, it’s important to capture this agreement in writing. If employees do not accept, it can be difficult for a business to navigate where they stand with being able to make any changes. If you require further advice in regards to your obligations to consult with staff, or any templates to accompany this, please reach out to the team.

Disclaimer

The information provided in these blog articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact HR Connect for advice.

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