Over the past week, the Fair Work Commission has handed down decisions which allow employers of those covered by the Clerks – Private Sector Award 2010 (Clerical Award) and the Hospitality Industry (General) Award 2010 (Hospitality Award) greater flexibility during the COVID-19 crisis.

Unless extended on further application, the variations to the Clerks Award will operate from the first pay period after 28 March 2020 until 30 June 2020. For the Hospitality Award, the variations will operate from the first pay period after 24 March 2020 until 30 June 2020.

The orders made are in response to expedited applications to vary the Awards made by various employer organisations, either jointly with relevant trade unions or with their support.

In relation to the Clerical Award, the variations are aimed at providing targeted flexibility as to:

  1. the range of duties employees can be required to perform – employees can be directed to perform any duties that are within their skill and competency, regardless of their classification under the Award provided that the duties are safe, the employee is licensed and qualified to perform them and the employee is paid no less than their usual rate;
  2. the minimum engagement for part-time and casual employees working from home – part time and casual workers working from home must be engaged and paid for a minimum of 2 consecutive hours (previously 3 hours);
  3. the spread of ordinary hours of work for day workers working from home – on the request of an employee, an employer may agree to vary the spread of hours to be worked by an employee working from home to between 6.00am and 11.00pm, Monday to Friday and between 7.00am and 12.30pm on Saturdays;
  4. the temporary reduction of ordinary hours by agreement – this can now be done with the agreement of at least 75% of full and part-time employees in the workplace (or, where relevant, section of the workplace) provided that the hours are not reduced below 75%. The agreement of employees must be determined by vote in accordance with the Award rules. Where a reduction in hours has been agreed, employers must not reasonably refuse to allow an affected employee to engage in reasonable secondary employment and must consider any reasonable request for training, professional development and/or study leave;
  5. the taking of annual leave – 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. Employers may also direct an employee to take any annual leave that has accrued, subject to considering their personal circumstances and provided that they have been given at least one week’s notice (unless agreed otherwise). Employers must also ensure that the direction to take annual leave doesn’t result in an employee having less than 2 weeks of accrued leave remaining; and
  6. the notice period for a close-down where the employee is required to take annual leave – this has been reduced from 4 weeks’ notice to one week.

These provisions are set out in full in Schedule I of the Clerical Award. There are similar provisions in Schedule L of the Hospitality Award. We think it likely that similar variations will be made to other Awards in an effort to allow more employees to stay in the workplace. At the very least, it is refreshing to see the cooperative manner in which unions and employer organisations have approached this issue in the face of considerable uncertainty.

Please contact us if you would like further information.