There's an App for that! The rise of apps in employment relationships

With apps that organise our money, our social lives, the music we listen to and the food we eat, it comes as no surprise that there are more and more apps to organise when we work coming onto the market. These apps have been designed to make life easier and more efficient for employers in various industries, particularly the retail sector where rostering is notoriously fraught.

However, before integrating these apps into their business, employers should understand and take steps to address the associated legal risks, particularly in relation to compatibility issues with applicable enterprise bargaining agreements (EBA), modern awards and the Fair Work Act 2009 (Cth) (FW Act).

But first — what are these apps and what are they all about?

Work? There's an app for that

Until now, rostering has been determined by employers based on employee availability and business need, with little or no direct input from employees (and certainly without the entire cohort of employees contributing to the roster in real time). The roster is then published and any swaps between employees generally occur on an ad-hoc basis.

This has all started to change with the emergence of apps such as "WorkJam", "When I Work", "Humanity", and "Deputy". These apps democratise the rostering process, allowing employees to "bid" for vacant shifts, change their hours, trade and cancel shifts and even work at different locations (where the employer is a multi-site business) all through a single platform. This simplifies roster management for employers while at the same time giving employees more say in when and where they work. Some major retailers have also developed their own business-specific apps with similar functions.

Other features of these apps include:

• a web clock allowing employees to "clock on" and access time cards;
• a communication module which facilitates direct communication between management and workers (including messaging channels to broadcast company news, and notifications of schedule changes and event reminders);
• a task management function to distribute and track tasks amongst employees; and
• learning management systems where training materials can be posted and participation can be tracked.

Benefits for business

There is no doubt that this new wave of apps has the potential to substantially streamline processes and save time and money for employers.

Clearly, the successful implementation of these apps would reduce the administrative burden of rostering a large workforce and also improve tracking of who actually works a particular shift. However, there is more to the story.

The advertised benefits of these apps include that they can blunt the negative impacts of absenteeism by allowing a replacement to be secured far more efficiently. It has even been suggested that they will reduce the rate of absenteeism itself, by increasing an employee's control over their hours of work and increasing their accountability.

It's also worth noting that GPS tracking linked to each employee's mobile device will ensure that start and finish times are accurate, and that the communications function will avoid the need for employees to share their mobile numbers with their colleagues should they wish to keep this private. These apps also provide the employer with more control, and a clearer line between what is and is not work related, than messaging apps such as WhatsApp that are commonly used by managers and their teams.

There is no doubt that these apps can make life easier for managers and employees alike. However, as with most new technology, there are also potential drawbacks.

Feeling App-rehensive?

Without wanting to pour cold water over the excitement around new work apps, there are a number of legal issues that employers should consider as they seek to integrate apps with their existing systems. In some cases, it may be necessary to tailor apps to your business or to consider changes to instruments which govern the employment relationship.

We recommend that you consider these issues, and review existing industrial instruments and contracts of employment for their compatibility with these apps before implementing them at your workplace.

Considerations to bear in mind before implementing an app at your workplace:

• Check the interaction between the flexibility afforded by the rostering functions and existing instruments which set minimum standards, such as EBAs, modern awards, the FW Act, and contracts of employment. For example, how to ensure that employees do not work a pattern of hours that attracts a large amount of overtime under an applicable award or EBA? Similarly, what to do if an enterprise agreement requires that an employer must roster employees for a certain number of hours and publish this roster in advance, with restrictions on the ability to make changes?
• Ensure that when selecting employees who "bid" for shifts, no unlawful criteria are unintentionally taken into account (e.g. carer's responsibilities) and that process this does not become a substitute for performance management.
• While it may be hard to believe, not everyone has access to a smart phone or is proficient in their use. Managing this, particularly in light of age discrimination laws and the likelihood that this will be more of an issue for older members of the workforce, needs to be carefully considered.
• Whether there is a need to adapt existing policies dealing with social media and technology use to cover use of the 'news feed' and instant messaging functions that are a feature of many of these apps.