Amendments to Modern Awards

The COVID-19 virus, commonly known as the Coronavirus, has drastically affected the Australian economic and organisational landscape at both federal and state levels. The widespread effects of the COVID-19 virus have posed significant short-term and long-term challenges for employers and employees alike.

However, some of the more affected industries have taken active steps to mitigate the effects of the COVID-19 virus on organisational sustainability. In March 2020, the Fair Work Commission (Commission) approved applications for temporary variations to the Hospitality Industry (General) Award 2010 (Hospitality Award) and the Clerks-Private Sector Award 2010 (Clerks Award).

Hospitality Award

On 24 March 2020, the Full-Bench of the Commission approved the variation to the Hospitality Award to include greater flexibility to employees covered by the Hospitality Award. These changes are implemented for a three-month period and will operate from 24 March 2020 until 30 June 2020, with the possibility of an extension.

The changes are set out in Schedule L of the Hospitality Award, and include the following:

• Employees can be directed to work across other classifications if those duties are within the employee’s skill and competency and provided they possess required licenses and qualifications. There will be no reduction in pay for undertaking these duties;
• Following consultation with affected employees, an employer can direct a full-time employee to work an average of between 22.8 and 38 ordinary hours per week. The employee will be paid on a pro rata basis and will continue to accrue annual and personal leave and any other applicable accruals under the Hospitality Award;
• Following consultation with affected employees, an employer can direct a part-time employee to work an average of between 60% and 100% of their guaranteed hours per week or an average of between 60% and 100% of their guaranteed hours per week over their roster cycle. The employee will continue to accrue annual and personal leave and any other applicable accruals under the Hospitality Award;
• Subject to an employee’s personal circumstances, an employer may direct the employee to take annual leave with 24 hours’ notice; and
• By agreement between the employer and employee, the employee can take twice as much annual leave at half the rate of pay for all or part of any period of the leave.

Clerks Award

On 28 March 2020, the Full-Bench of the Commission approved the variation to Clerks Award, which included similar changes to the Hospitality Award as well as new variances such as leave during a close-down. These changes will operate from 28 March 2020 until 30 June 2020, with the possibility of an extension.

The changes are set out in Schedule I of the Clerks Award, and include the following:

• Employees can be directed to work across other classifications if those duties are within the employee’s skill and competency and provided they possess required licenses and qualifications. There will be no reduction in pay for undertaking these duties;
• Where a working from home arrangement is agreed by the employer and employee, the spread of ordinary hours are expanded to between 6.00am and 11.00pm, Monday to Friday, and 7.00am to 12.30pm on Saturday;
• Part-time employees who are working from home by agreement with the employer are entitled to be rostered for a minimum of two consecutive hours on any shift and paid at the appropriate rate;
• Casual employees who are working from home by agreement with the employer are entitled to a minimum payment of two hours’ work at the appropriate rate;
• Full-time and part-time employees in a workplace, or section of a workplace, may agree to temporarily reduce ordinary hours for a specified period for the whole workplace or section of the workplace, by a 75% majority vote of full-time and part-time employees. Any reduction in ordinary hours is limited to a 25% reduction or less. Affected employees will continue to be paid at their ordinary hourly rate and will continue to accrue all relevant entitlements at their ordinary hours of work prior to the agreement to reduce hours.
  
  All affected employees must vote on the proposed reduction in hours, and in the absence of a workplace union’s involvement, the employees must be informed of the decision. Further, the Commission must be notified of the vote pursuant to the process set out in the Schedule I;
• Employers and employees may agree to the taking of 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;
• An employer may direct an employee to take any annual leave that has accrued, by giving at least one weeks’ 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 two weeks of accrued annual leave remaining;

• An employer may require an employee to take annual leave by giving at least one weeks’ notice as part of a close-down of whole or part of its operations, or any shorter period of notice that may be agreed;
• An employee can agree to take accrued annual leave for the period of the close-down of its operations. In the event that an employee does not have sufficient leave to cover the whole period of the close-down, the employee agrees to take leave without pay for the remainder of the close-down period; and
• Any close-down of an employer’s operations does not extend beyond 30 June 2020.

Take Home Messages

These applications to vary Modern Awards serve as a clear indicator that employers and unions are banding together, albeit only temporarily, to mitigate the effects of the COVID-19 virus and its effects on their industry. It is likely that this is only the first wave of applications to vary Modern Awards, and we anticipate that the Commission will receive more applications in due course. The amendments provide employers with additional flexibility during these difficult times.

In anticipation of these applications, the Commission has established a specific email address (COVID19Applications@fwc.gov.au) to assist in urgent applications regarding variations to Modern Awards of industries affected by the COVID-19 virus.

For more specific information on any of the material contained in this article please contact Lincoln Smith on +61 8 8210 1203 or lsmith@normans.com.au or Thomas Tagirara on +61 8 8217 1337 or ttagirara@normans.com.au.