On Saturday 28 March 2020, the Fair Work Commission made its second determination in an effort to preserve the ongoing viability of businesses and jobs in response to the challenges being experienced by employers and employees as a result of the COVID-19 pandemic. This determination inserted a COVID-19 flexibility schedule into the Clerks Private Sector Award 2010 (Award).

We have set out the key variations to the Award that commenced on 28 March 2020 below.

Increased operational flexibility

Where necessary, an employer may direct employees to perform alternative duties that are within their skill and competency regardless of their classification, provided that the duties are safe, and the employee is licensed and qualified to perform them.

The hourly rate for employees who perform duties outside of their usual classification will not be able to be reduced as a result of being directed to perform the alternative duties.

Part-time employees working from home

Part-time employees who are working from home by agreement with the employer because of measures in response to the COVID-19 pandemic are required to be rostered for a minimum of two consecutive hours on any shift.

Casual employees working from home

Casual employees who are working from home by agreement with an employer because of measures in response to the COVID-19 pandemic are entitled to a minimum payment of two 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 can be varied by agreement between an employer and its employees to between 6.00 am and 11.00 pm, Monday to Friday and between 7.00 am and 12.30 pm on Saturday, for employees working from home by agreement with the employer in response to the COVID-19 pandemic.

Day workers will not be considered to be shift workers for the purposes of any penalties, loadings or allowances under the Award.

Temporary reduction in ordinary hours by agreement

An employer and the full-time and part-time employees in a workplace or section of a workplace, may agree to temporarily reduce ordinary hours of work for those employees for a specified period while the changes in response to the COVID-19 pandemic are in operation but only with the approval of at least 75% of the affected employees.

The support of employees needs to be determined by a vote of employees and, in order for the vote to be valid, the employer must comply with the requirements in the flexibility schedule.

For full time and part-time employees, ordinary hours of work may be temporarily reduced to not fewer than 75% of the ordinary hours applicable to those employees immediately before the implementation of the temporary reduction in ordinary hours.

Where there is an agreement to temporarily reduce ordinary hours of work, the employee's ordinary hourly rate will be maintained but the employee will be paid on a pro-rata basis.

An employer and an individual employee are not prevented from agreeing in writing (including by electronic means) to reduce hours or to have an employee move temporarily from full-time to part-time hours of work, with a proportionate reduction in the minimum weekly wage.

Where an employee's ordinary hours have been temporarily reduced, the employer must:

  1. not unreasonably refuse a request by the employee to engage in reasonable secondary employment
  2. consider all reasonable employee requests for training, professional development or study leave.

All relevant accruals and all entitlements on termination of employment will continue to be based on each employee's weekly ordinary hours of work before the commencement of the flexibility schedule.

Annual leave

The flexibility schedule allows an employer and employee to agree to an employee taking twice as much annual leave at half the rate of pay for all or part of the annual leave, including any close-down.

An employer may direct an employee to take annual leave that has accrued, subject to considering the employee's circumstances, by giving at least one week's notice, or any shorter period of notice that may be agreed. A direction to take annual leave cannot result in an employee having less than two weeks of accrued annual leave remaining.

Close down

An employer may direct an employee to take annual leave by giving at least one week's notice as part of a close-down of its operations, or part of its operations, or any shorter period of notice that may be agreed.

If an employee has not accrued sufficient leave to cover part or all of the close-down, the employer must allow the employee to take paid annual leave for the period for which they have accrued sufficient leave and to take unpaid leave for the remainder of the closedown.

Where an employee is placed on unpaid leave due to insufficient paid leave accruals, the period of unpaid leave will count as service for the purposes of relevant award and National Employment Standards entitlements.

An employer is not permitted to require an employee to take leave for a period beyond the period of operation of the flexibility schedule.

The determination, which commenced on Saturday 28 March, will expire on 30 June 2020, with the possibility of further extension.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.