Employee agreement essential to vary part-time hours: FWC

An early childhood employer has been reprimanded by the Fair Work Commission (FWC), after falling victim to the widely held and long-standing misconception that part-time employment is configured by stipulating a range of hours, with a guaranteed weekly minimum of 15, and that rosters may be changed at the employer’s discretion by giving a week’s notice.

The Victorian-based service agreed to have the FWC arbitrate the employee’s dispute in December, which was lodged by the Educator in response to the employer notifying her it was unilaterally reducing her days and hours subject to two weeks’ notice. The correspondence was issued after negotiations about the Educator’s request for flexible working arrangements broke down. When the employee challenged her employer regarding the proposed roster reduction, the employer insisted the Children’s Services Award (CS Award) prevailed, noting the award provided that, “where agreement cannot be reached, the employer may change the days the employee is to work by giving seven days’ notice”. 

In 2024, on commencement of her employment, the Educator signed a contract which designated her engagement as part-time and indicated minimum hours of work of 15 per week, plus reasonable additional hours. The document further described the “ordinary days and time of work” as “as per roster between the hours of Monday to Friday 6.30am to 6.30 pm or as agreed”. The Educator queried the “minimum hours” reference and was assured by email before she worked her first shift that “9am – 3pm Monday to Friday” would be her “correct schedule”. The employer conceded that this email exchange constituted “the written agreement in writing on a regular pattern of work required by clause 10.4(c) of the [CS Award]”.

It was not until 12 months into her employment that the employee sought variation to her “correct schedule” by requesting to relinquish Wednesdays from her rostered hours. Negotiations deteriorated resulting in the employer repeatedly advising the Educator that, not only could they not agree to her requested variations to her hours, they also couldn’t continue to honour her existing part-time arrangement and gave notice her hours would become either 9am – 6pm, or 8.30am – 5pm on Tuesdays and Wednesdays. When the employer continued to ignore the Educator’s assertions that her regular hours could not be altered without her written agreement, the employee lodged her dispute with the FWC, which preserved her existing roster of 9am – 3pm, Monday to Friday, at least temporarily.   

When the dispute progressed to hearing following failed attempts at conciliation, Commissioner Redford identified the question requiring resolution to be: “Is [the employer] entitled under the terms of the [CS Award] to change [the employee’s] hours of work in the manner in which it has proposed to do so?”

Commissioner Redford determined that the original email exchange pre-dating the Educator’s employment constituted the “agreement in writing” stipulated by the CS Award confirming the employee’s regular pattern of employment to be “9am – 3pm Monday to Friday”. The Commissioner further observed, “it has been established in evidence that no written agreement has been made to change that regular pattern, within the meaning of clause 10.4(d)(i) of the CS Award”. Turning to consider whether the employer was then permitted to change the employee’s regular pattern of work without her written agreement, Commissioner Redford assessed that the employer incorrectly sought to rely upon the award clause that permits an employee’s days of work to be changed with seven days’ notice, “where agreement cannot be reached”, explaining:

“If the clause was also intended to create an exception in relation to matters beyond the days the employee is to work, such as the regular pattern of work or in starting and/or finishing times, it would have said so. It does not.”

In reference to the employer’s suggestion that it was entitled to rely upon the giving of seven days’ notice to reduce the Educator’s days of work, rather than merely change them, Commissioner Redford commented such a claim “would have little merit”. He went on to observe:

“A unilateral change to reduce days of work from five to two per week would likely raise questions as to whether the employment has been terminated (notwithstanding the reference to 15 hours per week in the contract of employment). It is also inconsistent with the nature of regularly predictable hours of work.”

Commissioner Redford expressed that the employer’s claims in relation to its operational and business requirements “do not assist it”, adding that the terms of the award are “not to be ignored simply because they are commercially or operationally inconvenient”. The Commissioner ultimately concluded:

“On this formulation of the Award, [the employer] was not and is not entitled to change [the employee’s] pattern of work from Monday to Friday, 9:00AM to 3:00PM each day, [to] Tuesday and Wednesday, either 9:30AM to 6:00PM, or to 8:30AM to 5:00PM, or to 9:00AM to 5:00PM, without such a change being made in agreement in writing between it and [the employee].”

The Educator’s regular hours as originally agreed were ordered to continue unless or until mutually agreed otherwise.

Poynton v Davmat Investments Pty Ltd T/A Little Saints Early Learning [2026] FWC 157 (28 January 2026)