This article was written by Murray Kellock, Irma Glinac and Bridget Sheahan.
On Saturday 28 March 2020, the Fair Work Commission (FWC) made a determination varying the Clerks-Private Sector Award 2010 (Clerks Award) to insert “Schedule I – Award Flexibility during the COVID-19 Pandemic”.
The determination, which was approved by President Iain Ross, Deputy President Richard Clancy and Commissioner Michelle Bissett following a special Saturday sitting by telephone, introduces a series of special conditions in the Clerks Award to provide for flexibilities around working from home, taking leave and reduced hours of work whilst retaining rates of pay for work performed, to assist employers and employees adapt and adjust to the Covid-19 pandemic.
The determination has the effect that Schedule I applies from an employee’s first full pay period that starts on or after 28 March 2020 until 30 June 2020, unless extended by application.
Detailed below are the key changes.
Operational flexibility – duties
Employers can direct employees to perform any duties that are within their skill and competency regardless of their ordinary classification with no reduction in the employee’s pay, provided that:
- the duties are safe; and
- the employee has the necessary licenses and qualifications to perform them.
Minimum engagement for part-time and casual employees
Where part-time and casual employees are working from home by agreement with their employer:
- part-time employees can have their minimum engagement reduced to 2 consecutive hours per shift; and
- casual employees must be paid for a minimum of 2 hours’ work per shift.
Span of hours
To provide greater flexibility for employees working from home by agreement with their employer, where an employee requests and the employer agrees, the span of ordinary hours of work for day workers is between:
- 6am and 11pm, Monday to Friday; and
- 7am and 12.30pm, Saturday.
Day workers are not considered shiftworkers for the purposes of any penalties, loadings or allowances under the Clerks Award, including for the purposes of clause 28 which deals with shift work, while Schedule I is in force.
Agreed temporary reduction in ordinary hours for full-time and part-time employees
Employers can temporarily reduce their permanent employees’ hours of work to not less than 75% of their full-time ordinary hours or agreed part-time hours immediately prior to the temporary reduction. This can be for the whole business or a section of the business.
Hours may only be temporarily reduced where at least 75% of the affected full-time and part-time employees approve the temporary reduction.
The approval of employees is to be determined by a vote of employees. For the vote to be valid, the employer must:
- if any employee is a known member of a union, let the union know about the vote before the vote takes place;
- prior to the vote, provide the employees with the contact details of the Australian Services Union (ASU), should they wish to contact the ASU for advice;
- notify the FWC by emailing [email protected] that the employer proposes to conduct a vote under Schedule I, and provide to the FWC the work email addresses of the employees who will be participating in the vote. The FWC will then distribute to the employees the ASU COVID-19 Information Sheet prior to the vote, and list the name of the business on a register which will be accessible to the ASU, upon request, for the period when Schedule I is in operation; and
- not hold the vote until at least 24 hours after the steps in (a) – (c) have been met.
Where a reduction in hours takes effect, the employee’s ordinary hourly rate will be maintained but the weekly wage will be reduced by the same proportion. Employees working reduced hours pursuant to Schedule I will have all relevant accruals and all entitlements on termination of employment continue to be based on their weekly ordinary hours of work prior to the commencement of Schedule I.
Employers cannot unreasonably refuse an employee’s request to engage in reasonable secondary work, and must consider reasonable requests for training, professional development and/or study leave.
Please note that notwithstanding Schedule I, employers and employees are still free to reach an agreement 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.
Schedule I gives increased flexibility regarding leave entitlements.
An employer and employee can agree for the employee 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.
Employers can direct an employee to take annual leave (including for a close-down) on giving at least one week’s notice, unless a shorter notice period has been agreed with the employee.
In the case of a direction other than for a close-down, the employer must:
- consider the employee’s personal circumstances; and
- ensure the direction does not result in the employee having less than 2 weeks accrued annual leave remaining.
Further, in the case of a close-down, employees are entitled to unpaid leave where they do not have enough accrued leave to cover the full period.
Interaction with enterprise bargaining agreements (EBAs)
EBAs operate to the exclusion of modern awards and therefore, Schedule I of the Clerks Award has no immediate impact on the terms of employment of any employees covered by an EBA.
Schedule I may be relevant however if an EBA is varied, or if a new EBA is being negotiated within the period in which Schedule I is in operation. For approval purposes, the FWC must be satisfied that all employees would be better off overall under a varied/new than under the relevant award.