Our team in Australia recently highlighted the unprecedented interim changes to the Hospitality Industry (General) Award 2010 and warned that more would likely follow, as Australian businesses struggle to maintain employment levels and survive the COVID-19 crisis.
In his submissions to the Fair Work Commission (FWC), Christian Porter, Minister for Industrial Relations, noted that as at February 2020 approximately 14.3% of all employees (around 1.56 million people) were employed in positions governed, or supported, by the Clerks Private Sector Award 2010 (Award). This makes it unsurprising that this Award would be next in line for the FWC to consider the insertion of urgent interim measures.
In its decision reached on Saturday (28 March 2020), the FWC changes allow an employer to, amongst other things:
1. Direct an employee to perform any duties within their skill and competency, irrespective of the employee's classification within the Award, where it is safe and, if required, they are licensed/qualified to do so.
2. Where an employee is working from home (by agreement with their employer), alter the spread of ordinary hours, if the employee requests and the employer agrees, to work performed between 6am and 11pm, Monday to Friday and between 7am and 12:30pm, Saturday.
3. Temporarily reduce an employees' ordinary hours:
a. by mutual written agreement with the individual employee to reduce their ordinary hours or temporarily move to part time employment; or
b. to not fewer than 75% of the employees' (full time or part time, as appropriate) ordinary hours applicable immediately prior to the temporary reduction in hours. If an employer wishes to reduce hours, employees will need to vote in favour of that reduction. This voting process must comply with prescribed requirements, including providing union contact information. The FWC will then distribute information sheets and maintain a register.
If any temporary reduction occurs all relevant leave accruals and termination entitlements will continue to be reflective of the employee's ordinary hours prior to the temporary reduction.
4. A minimum of two consecutive hours' work per shift for casual and part-time employees is required.
5. Direct an employee to use their annual leave accruals, after considering an employee's personal circumstances, if:
a. The employee has been given at least 1 weeks' notice (less if mutually agreed) and when it will not result in the employee having less than 2 weeks' accrued annual leave remaining; or
b. If required to take annual leave during any 'close down', the employee must:
i. be given at least 1 weeks' notice (less if mutually agreed); and
ii. if they have insufficient leave to cover all or part of the close down period, the employee must be permitted to exhaust their annual leave accrual and then given unpaid leave for the remainder of the close down (any period of unpaid leave will count as continuous service).
If mutually agreed, the employee can access up to double their annual leave accrual at a reduced rate (for example: where 1 week annual leave has accrued, the employee may agree to take 2 weeks at half pay);
These changes take effect following the next full pay period and will operate until 30 June 2020, however this period is designed to allow flexibility to adapt the COVID-19 pandemic. It is likely to be extended should the economic effects of the pandemic continue to be felt.
As foreshadowed, changes such as these are likely to be coming in hard and fast to equip employers with tools and mechanisms that can assist businesses to survive. To make sure your business is across these developments as and when they occur, and receiving the best possible advice to navigate such unprecedented times, please contact a member of our employment team.
If you require further information or have any queries in relation to this legal update, please contact Michelle Dawson or Matthew Smith.
We would like to acknowledge the contribution of Nicole Davis to this article.