The Fair Work Commission (FWC) has acted on
applications made by employer associations and unions by varying a
number of awards to introduce temporary flexibility provisions in
light of the COVID-19 pandemic and the associated public health
orders. These important measures aim to provide employers with the
flexibility to resource their businesses appropriately in the
current climate whilst maintaining compliance with the applicable
modern award, allowing them to continue active operations and
retain employees.
The modern awards which have been temporarily varied to date are
the Hospitality Industry (General) Award 2010
(Hospitality Award)1 and Clerks
— Private Sector Award 2010 (Clerks
Award).2
The variations take effect by way of a temporary schedule and
address issues such as annual leave (including directions to take
it and the way in which it can be taken); hours of work (including
reduction in hours and expanding the spread of hours) and work
across classifications. An overview of the changes is set out
below:
Hospitality award |
Clerks award |
- Operational flexibility: Employees can be
directed to perform any duties that are within their skill and
competency (regardless of classification), provided the duties are
safe and the employee is licensed and qualified to perform them.
Note that higher duties rates will apply, if applicable.
- Hours of work: Full-time employees may work an
average of 22.8 to 38 ordinary hours per week, as directed by
their employer. Part-time workers can work an average 60% -
100% of their guaranteed hours per week/roster cycle, as
directed by their employer. Annual leave, personal/carer's
leave and "any other applicable accruals" under the award
are accrued and paid on the pre-existing hours of work (not the
reduced hours).
- Consultation re changed hours of work:
Notification and consultation with the affected employee(s) is
required. Employers must also notify the United Workers Union (if
the affected employee(s) are members) of the intention to implement
these arrangements.
- Dispute resolution: Disputes to be heard by
the FWC.
- Annual leave: Employers can direct
employees to take annual leave with 24 hours' notice (subject
to considering the employee's personal circumstances). The
employer and employees can agree to the taking of twice as much
annual leave at half the rate of pay.
- Operation: 24 March 2020 until 30 June 2020.
This period can be extended upon application to the FWC.
|
- Operational flexibility: Employees can be
directed to perform any duties that are within their skill and
competency (regardless of classification), provided the duties are
safe and the employee is licensed and qualified to perform them.Pay
cannot be reduced if an employee is directed to perform alternate
duties.
- Part-timers and casuals working from home:
Employers are required to roster a part-time employee who is
working from home for a minimum of 2 consecutive hours on any
shift.Casual employees working from home must be paid a minimum
payment of 2 hours' work at the appropriate rate.
- Ordinary hours of work for employees working from
home:The spread of ordinary hours of work for day workers
is (by agreement) between 6:00am and 11:00pm Monday to Friday, and
between 7:00am and 12:30pm on Saturday.
- Agreed temporary reduction of ordinary hours:
Employers and full-time and part-time employees can agree to
temporarily reduce ordinary hours of work for the workplace or a
section of it.At least 75% of the employees in the workplace or
relevant section must approve the agreement.The hours may be
reduced to "not fewer than 75%" (ie up to a 25%
reduction) of the previous ordinary hours.The FWC established a
process for the vote to be valid.The ordinary hourly rate is
maintained, but the weekly wage is reduced by the relevant
percentage.If hours are reduced, an employer cannot unreasonably
refuse an employee's request to engage in reasonable secondary
employment and must consider all reasonable requests for training,
professional development and/or study leave.All relevant accruals
and termination entitlements are based on the pre-existing ordinary
hours of work (not the reduced hours).
- Annual leave: Employers can direct
employees to take annual leave with one week's notice or a
shorter agreed period (including any close-down), but this cannot
result in the employee having less than 2 weeks of leave left.The
employer and employees can agree to the taking of up to twice as
much annual leave at a proportionately reduced rate for any agreed
or directed period of annual leave (including during a
close-down).
- Close down: Employees can be directed
to take annual leave as part of a close-down by giving at least one
week's notice.If the employee does not have sufficient annual
leave, they may have unpaid leave.The period of unpaid leave counts
as service for the award and NES entitlements.
- Operation: 28 March 2020 until 30 June
2020.This period can be extended upon application to the FWC.
|
The COVID-19 situation in Australia is continuously evolving.
This update is correct as at 30 March 2020, but there may be
further variations to other modern awards in the coming days and
weeks. At the time of writing, we are aware that a similar
application has been made in respect of the Restaurant Industry
Award 2010. We encourage you to contact us or visit the Fair
Work Commission website to keep up to speed with the latest
developments.
David Cross, Norton Rose Fulbright Employment and Labour
Partner, will be presenting a webinar on the varied award clauses
on Thursday 2 April 2020 at 2.30pm AEDT. Please register to tune in
and join David for this discussion
here.
Footnotes
1 See the Hospitality Award Determination
dated 24 March 2020
here.
2 See the Clerks Award Determination dated 28
March 2020
here.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.