Resources: Blog

FWC finds evolving technology not a significant role change for IT employee

Blog
|

Head in the cloud

Organisational change is a constant for business – whether it involves wider cultural change within a company, the introduction of new technology or systems of work, or even a restructure or downsizing of the workforce.

Organisational change is a constant for business – whether it involves wider cultural change within a company, the introduction of new technology or systems of work, or even a restructure or downsizing of the workforce. These changes are necessary as businesses must respond and adapt to external changes so that they stay relevant and competitive in the marketplace.

In a recent decision, the Fair Work Commission (FWC) has endorsed the view that employers can and should encourage their employees to utilise and develop their skills to keep up with the changing needs of the employer’s business.

In Cameron v National Australia Bank T/A National Australia Bank [2020] FWC 247, the FWC was asked to consider whether an employer’s decision to transition from on-premises technological applications and systems towards Cloud-based applications and systems amounted to a significant role change for a Solutions Architect (and therefore entitled him to a redundancy payment).

The employee, who had been with the employer for thirty years, had held a number of different positions within the Solutions & Architecture team. In his most recent role as Solutions Architect, he was the “IT interface” between various departments and the IT specialists who created the programs to meet the needs of those departments. He would work with one particular business department at a time to provide an ‘end-to-end’ technology solution.

The business underwent an organisational restructure in April 2019 which resulted in the redundancy of the position of Solutions Architect, and the redeployment of the employee into a new role called Service Architect. This new role meant that the employee could be deployed into projects/initiatives across the business rather than supporting a particular business unit.

The employee claimed that this new role was not a “comparable position” to his old role and he was therefore entitled to a redundancy payment under the relevant enterprise agreement.

The employee primarily argued that the employer was adopting a Cloud-first strategy and this was a critical change from his previous role and would require him to undergo a significant amount of training to obtain the level of knowledge necessary perform the new role. He argued that this was unreasonable because of his declining capabilities to learn and retain new information.

Despite the employee’s contentions, the FWC was satisfied that the nature of the old role and the new role was the same and that the only difference was that, in the new role, the employee could be redeployed to projects/initiatives across the various divisions of the business.

The FWC was not satisfied that the Cloud-based strategy amounted to a change in the employee’s duties, noting that the Cloud-based strategy had been implemented prior to the creation of the new role and the organisational restructure.

Even if it did change the employee’s duties, it was not a significant change because the employee evidently had the skills, ability and experience to architect solutions across different divisions, and the employer had made it clear to him that it would only deploy him into projects and work based on his skills, ability and experience.

The FWC also considered that the level of training that would be required was not unreasonable, noting that the employee did not need a deep technical knowledge of Cloud-based technology to perform the new role and the employer was willing to support him and provide that training. It also noted that technological changes happen regularly and there was nothing remarkable about this particular change (a point which the employee conceded). The FWC concluded that it was entirely reasonable for the employer to expect and support the development of its IT professionals to adapt to the change.

The FWC observed that the employee evidently had concerns about his ability to perform the role despite the employer’s confidence in him, which should have been a comfort to the employee. The FWC nonetheless determined that the new role was a comparable position under the enterprise agreement and the employee was not entitled to a redundancy payment.

Lessons for employers

Major changes within a business can often be met with reluctance and apprehension from employees for various reasons.

Whilst it is not possible to foresee and address every concern that might arise, employers can minimise the risk of conflict by taking all reasonable steps to ensure that the reason for change is properly communicated to affected employees and that employees are given the tools and resources to enable them to adapt to the change.

This decision also provides some comfort to employers that changes or upgrades in technology will not automatically render a position non-comparable when considering possible redeployment opportunities.

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

Similar articles

Key Takeaways from our Webinar

Managing Workplace Behaviour: "You Get What You Tolerate"

In our August webinar, our Managing Director and Principal, Athena Koelmeyer, discussed the challenges faced by modern employers when managing workplace behaviour. In that webinar, Athena examined a number of recent unfair dismissal decisions of the Fair Work Commission which provide some good guidance for employers.

Read more...

Managing employee conduct and behaviour in the workplace

Draw the line

Managing employee conduct and behaviour can be a challenge. The question of what is appropriate and what is not appropriate in the workplace will depend on a variety of factors, including the industry in which the employees work, the overall culture of the workplace and community standards at any given time.

Read more...

FWC upholds dismissal of employee who borrowed money from bus passenger

Bus money

Out of hours conduct and its impact on the employment relationship is always a hotly debated topic – particularly between employers and their employees.

Read more...

The onus and presumption in adverse action matters

It’s on you

Under the general protections provisions in the Fair Work Act 2009 (Cth) (FW Act), it is unlawful for a person to take adverse action against another person for a proscribed reason. One of the features of the general protections provisions under the FW Act is the presumption that adverse action was taken for a proscribed reason unless it is proven that the adverse action was not taken for that reason.

Read more...

Notice of termination in the employment contract

Put it in writing

When it comes to engaging new employees or promoting existing employees, it is crucial that employers prepare and review contracts of employment to ensure that they accurately reflect the terms which will govern an employee’s employment.

Read more...

Termination of employment letters

In your letter

A termination of employment letter serves a significant purpose in bringing the employment relationship to an end.

Read more...

Let's talk

please contact our directors to discuss how ouR expertise can help your business.

We're here to help

Contact Us
Let Workplace Law become your partner in Workplace Relations.

Signup to receive the latest industry updates with commentary from the Workplace Law team direct to you inbox.