The Educational Services (Schools) General Staff Award 2010 and the Vehicle, Manufacturing, Repair, Services and Retail Award 2010 are the latest modern awards to be varied to allow greater flexibility for employers during the COVID-19 pandemic.
This follows other recent amendments to the Restaurant Industry Award, the Clerks Award and the Hospitality (General) Industry Award.
Changes to the Educational Services (Schools) General Staff Award 2010
The changes temporarily vary the Award to permit an employer to direct a permanent employee to reduce their hours by up to 25%.
The direction will come into force 5 days after the employer issues the employee with a notice of intention to reduce their hours, and will remain in force for a period of no more than 12 weeks. The provision is subject to protections including:
- immediately after issuing the direction the employer must:
- discuss the reason behind the direction with the employee and any representative;
- notify the union of its intention to implement a change in ordinary working hours;
- an employee given a direction will continue to accrue annual leave and personal/carer’s leave, based on their ordinary hours of work prior to the reduction in hours resulting from the direction;
- if an employee who is given a direction takes annual leave or personal/carer’s leave, the payment for the leave will be based on their ordinary hours of work prior to the reduction in hours resulting from the direction;
- any redundancy made an employee following the issue of the direction (following appropriate consultation) will be paid at the employee’s substantive fraction prior to the issuing of the direction.
Employees may be directed to perform duties outside the scope of their usual classification, subject to:
- the duties being within their skill and competency;
- the employee being licensed and qualified to perform the duties, and the duties being safe;
- the employer not reducing the employee’s pay; and
- where the duties are at a higher level than the employee’s substantive qualification, the employee being paid at the higher rate of pay.
The amendments to the Award will be in place from 24 April 2020 to 1 August 2020.
Changes to the Vehicle, Manufacturing, Repair, Services and Retail Award 2010
Temporary changes have also been made to the Vehicle Award. Importantly, these do not apply in respect of employees whom an employer is eligible to receive JobKeeper wage subsidies in respect of.
Change of duties
The amendments provide that employees may be directed to perform different duties to normal so long as that they are within their skill and competency, are safe, reasonably within the scope of the employer’s operations, and the employee is licensed and qualified to perform the duties.
The power to direct employees to perform such duties is subject to safeguards including:
- higher duties allowances will apply to employees engaged on duties carrying a higher rate than their ordinary classification (see clause 33.6 of the Vehicles Award); and
- an employer must not reduce an employee’s pay if the employee is directed to perform different duties.
Reduction in hours
Employers can also temporarily reduce the hours of work for full-time and part-time employees as follows:
- An employer can direct a full-time employee to work an average of between 22.8 and 38 ordinary hours per week, and reduce their pay on a pro-rata basis;
- A part-time employee can be directed to work an average of between 75% and 100% of their agreed hours per week or roster cycle;
- An employer may only direct a reduction in hours of work if the employee cannot be usefully employed for their normal days or hours as a consequence of COVID-19;
- Employees may not have their hours reduced if the amount payable under the reduced hours falls below prescribed minimum amounts;
- If an employee’s pay after receiving a direction is less than the normal weekly amount they would have received prior to the direction, the employee and the employer can agree to the employee accessing accrued annual leave (or any other type of accrued paid leave) to increase their weekly pay to their pre-directive amount;
- Prior to issuing a direction to reduce hours, the employer must consult with the affected employee, and if the employee is a member of the union, notify the relevant union;
- An employee given a direction will continue to accrue annual and personal leave, based on their pre-direction ordinary hours of work. If an employee takes a period of annual leave or personal leave during the period of the direction, the payment for that leave will be based on the employee’s pre-direction ordinary hours of work.
Direction to take annual leave
Employers may direct an employee to take annual leave by giving at least 72 hours notice, so long as they are left with a balance of at least two weeks. An employee must not unreasonably refuse the request.
Where an employer has closed their business due to COVID-19, the employer may direct an employee to take annual leave by giving one weeks’ notice. Where an employee has insufficient annual leave, they must take unpaid leave.
Where an employee is on unpaid leave during a shut-down or has been given a direction to reduce their work hours, the employer must consider and not unreasonably refuse a request by the employee to engage in:
- reasonable secondary employment;
- training; and/or
- professional development.
The changes to the Award will be in place from 11 May 2020 to 30 June 2020.
Other changes to the Vehicle Award
From 29 May 2020, the manufacturing stream of the Vehicle Manufacturing, Repair, Service and Retail Award is transferring into the Manufacturing and Associated Industries and Occupations Award. The title of the Vehicle Award will be amended accordingly.
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If you need any assistance in understanding your rights and obligations under modern awards please contact Employment Innovations.
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