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.



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Jason Noakes
Jason Noakes
Partner | Global Co-Head and Team Leader of Employment & Labour
Email
jason.noakes@nortonrosefulbright.com
T: +61 2 9330 8021
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T: +61 7 3414 2230

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