Head in the cloud: FWC finds evolving technology not a significant role change for IT employee

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.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

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.

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