Published 8 April 2020
On 28 March 2020, the Fair Work Commission (FWC) decided to vary the Clerks—Private Sector Award 2010 (the Award) by inserting Schedule I – Award Flexibility During the COVID-19 Pandemic. The Schedule aims to apply from 28 March 2020 until 30 June 2020.
In summary, the temporary changes to the Clerks Award are the following:
- Operational Flexibility: Employer can direct employees to perform all duties within their skills and competency.
- Part-time and Casual employees working from home: The minimum engagement is reduced to two hours.
- Ordinary hours of work: The spread of ordinary is extended between 6.00 am and 11.00 pm, Monday to Friday, and between 7.00 am and 12.30 pm on Saturday.
- Temporary reduction of hours: Employer and employees can agree to reduce ordinary hours by 75%.
- Annual leave: Employees can take annual leave at half pay to double the leave period in lieu of stand-down. Employers can direct employees to take annual leave with 1 week’ notice.
- Close-down: Increase the flexibility to implement annual leave during shut-down.
In detail, instead of the provisions in the Clerks Award, the following variations will apply:
|Provisions in the Clerks Award||Variation of the Clerks Award during the COVID-19 Pandemic|
|Operational flexibility||Clause I.2.1 (a) An employer can direct their employees to perform any duties that are within their skill and competency regardless of their classification under clause 15—Classifications and Schedule B—Classifications, provided that the duties are safe, and that the employee is licensed and qualified to perform them.
Clause I.2.1 (b) If an employee is directed to perform duties in accordance with the clause above, the employer must not reduce the employee’s pay.
|Part-time employees working from home||Clause 11.5. An employer is required to roster a part-time employee for a minimum of three consecutive hours on any shift.||Clause I.2.2 An employer is required to roster a part-time employee who is working from home by agreement with the employer, for a minimum of 2 consecutive hours on any shift.|
|Casual employees working from home||Clause 12.4 Casual employees are entitled to a minimum payment of three hours’ work at the appropriate rate.||Clause I.2.3 An employer must pay a casual employee who is working from home by agreement with the employer, a minimum payment of 2 hours’ work at the appropriate rate.|
|Ordinary hours of work for employees working from home||Clause 25.1 (b) The ordinary hours of work may be worked from 7.00 am to 7.00 pm Monday to Friday and from 7.00 am to 12.30 pm Saturday.
Clause 25.2 The ordinary hours of work are to be worked continuously, except for meal breaks, at the discretion of the employer. The spread of hours may by altered by up to one hour at either end of the spread, by agreement between an employer and the majority of employees concerned or in appropriate circumstances, between the employer and an individual employee.
|Clause I.2.4 (a) For employees working from home by agreement with the employer where an employee requests and the employer agrees, the spread of ordinary hours of work for day workers is between 6.00 am and 11.00 pm, Monday to Friday, and between 7.00 am and 12.30 pm on Saturday.
Clause I.2.4 (b) Day workers are not shiftworkers for the purposes of any penalties, loadings or allowances under the Award.
Clause I.2.4 (c) The facilitative provision in clause 25.2 which allows the spread of hours to be altered, will not operate for the employees referred to in clause I.2.5(e).
|Agreed temporary reduction in ordinary hours||Clause I.2.5 Employer and employees can agree to reduce ordinary hours by 75% – See details below|
|Annual Leave||Clause 29.6 (a) An employee has an excessive leave accrual if the employee has accrued more than 8 weeks’ paid annual leave.
Clause 29.6 (b) If an employee has an excessive leave accrual, the employer or the employee may seek to confer with the other and genuinely try to reach agreement on how to reduce or eliminate the excessive leave accrual.
Clause 29.7 sets out how an employer may direct an employee who has an excessive leave accrual to take paid annual leave.
Clause 29.8 sets out how an employee who has an excessive leave accrual may require an employer to grant paid annual leave requested by the employee.
|Clause I.2.6 (a) Employers and individual employees may agree to take up to twice as much annual leave at a proportionately reduced rate for all or part of any agreed or directed period away from work, including any close down.
Clause I.2.6 (b) An employer may direct an employee to take any annual leave that has accrued, subject to considering the employee’s personal 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 shall not result in an employee having less than 2 weeks of accrued annual leave remaining.
|Close down||Clause 29.5 An employer may require an employee to take annual leave as part of a close-down of its operations, by giving at least four weeks’ notice.||Clause I.2.7 (a) An employer may:
(i) require an employee to take annual leave as part of a close-down of its operations by giving at least one week’s notice, or part of its operations, or any shorter period of notice that may be agreed; and
(ii) where an employee who has not accrued sufficient leave to cover part or all of the close-down, the employee is to be allowed paid annual leave for the period for which they have accrued sufficient leave and given unpaid leave for the remainder of the close down.
Clause I.2.7 (b) Clause I.2.7(a) does not permit an employer to require an employee to take leave for a period beyond the period of operation of Schedule I.
Clause I.2.7 (c) Where an employee is placed on unpaid leave pursuant to clause I.2.7(a), the period of unpaid leave will count as service for the purposes of relevant award and NES entitlements.
Clause I.2.5 of Schedule I – Agreed temporary reduction in ordinary hours
An employer and at least 75% of 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 the employees in the workplace or section for a specified period while Schedule I is in operation. The approval of employees shall be determined by a vote of employees organised according to Schedule I clause I.2.5 (h).
Ordinary hours of work may be temporarily reduced:
- for full time employees, to not fewer than 75% of the full-time ordinary hours applicable to an employee immediately prior to the implementation of the temporary reduction in ordinary hours; and
- for part-time employees, to not fewer than 75% of the part-time employee’s agreed hours immediately prior to the implementation of the temporary reduction in ordinary hours.
The employee’s ordinary hourly rate will be maintained but the weekly wage will be reduced by the same proportion.
All relevant accruals and all entitlements on termination of employment will continue to be based on each employee’s weekly ordinary hours of work prior to the commencement of Schedule I.
The provisions above do not prevent an employer and an individual employee from agreeing in writing to reduce the employee’s hours or to move the employee temporarily from full-time to part-time hours of work, with a commensurate reduction in the minimum weekly wage.
On 1 April 2020, the Fair Work Commission issued a Statement outlining its intention to update 103 modern awards during the coronavirus pandemic. We expect a decision of the Commission following a hearing that is being held today, 8 April 2020.
We will issue a further update once the proposed variations have been determined.
The content of this publication is general in nature and provides a summary of the issues covered. It is not intended to be, nor should it be relied upon, as legal or professional advice for specific employment situations. PCC Employment Lawyers recommend that specialist legal advice should be sought about specific legal issues.