Over the weekend the Fair Work Commission made amendments to the Clerks Private Sector Award 2010 that applies to employees performing clerical and administrative duties in many industries. This follows amendments made to the Hospitality Industry (General) Award 2010 earlier in the week.

The amendments are designed to give employers and employees greater flexibility in dealing with the coronavirus pandemic and will operate until 30 June 2020. We set out the key amendments below;

 

Employees can be directed to do different duties.

The amendments allow employers to require employees to undertake any tasks that they have the skill to perform, even if they are not within their usual duties. If an employee is told to work above their usual classification for more than one day, the employer will need to pay the employee at the higher rate. Employees who do tasks below their usual classification are still paid at their usual pay rate.

 

Reduction in minimum engagements

Where a part-time or casual employee agrees with their employer to work from home, the minimum engagement for the shift is two hours (previously it was three).

 

Change to “span of hours” while working at home

Where employees work outside the “span of hours” set in the Clerks Award they are entitled to be paid overtime. The amendments to the Clerks Award allow employees who have agreed with their employer to work from home to agree to extend the “span of hours” to:

  • between 6 am and 11 pm, Monday to Friday, and
  • between 7 am and 12:30 pm, on Saturday.

 

Employers don’t need to agree with a majority of their employees to make these changes, it is agreed on an individual employee/employer level.

Employees are still entitled to be paid overtime when they work excessive hours (e.g. over 38 hours per week, etc).

Day workers won’t be considered shift workers for entitlements under the Clerks Award while these arrangements are in place.

 

Hours of work for full-time and part-time employees

The usual position in employment law is that employers cannot require permanent employees to reduce their hours (it has to be done by agreement). These changes to the Clerks Award now provide that employers can temporarily reduce full-time and part-time employees’ hours of work to:

  • not less than 75% of ordinary hours for full-time employees,
  • not less than 75% of part-time employees’ agreed hours.

 

This arrangement can be implemented for the whole business or a section of the business.

If an employer wants to reduce their employees’ hours, the employees will need to vote in favour of the reduction of hours. At least 75% of the full-time and part-time employees in the business or section of the business must vote in favour of the reduction.

The requirements for the vote are as follows:

  1. If any employee is a known member of a union, the union must be informed of the vote,
  2. The employees must be provided with the contact details for the Australian Services Union (ASU), if they wish to contact the ASU for advice,
  3. The employer must email clerksaward@fwc.gov.au about the vote and provide the employees’ private email addresses. The Commission will email the employees the ASU COVID-19 Information Sheet.
  4. The vote must be held at least 24 hours after they have followed steps 1-3.

 

Any employee who has had their hours reduced can ask their employer for permission to:

  • find alternative work with another employer,
  • access training, professional development and study leave.

 

Employees working reduced hours will accrue paid leave and other entitlements based on their ordinary hours of work before the reduction in hours was implemented.

 

Annual leave and unpaid leave during a close down of the business

Employers can now direct an employee to take annual leave by giving at least 1 week’s notice.

If the business closes down due to coronavirus and an employee doesn’t have enough paid annual leave to cover the whole period, the employer can direct the employee to take unpaid leave.

The period of unpaid leave counts as service for entitlements under the Clerks Award and the National Employment Standards (NES).

 

Annual leave when the business remains open

If the business isn’t closing, the employer can only direct an employee to take annual leave if:

  • the employee still will have at least two weeks of leave left after the direction
  • the employer has considered the employee’s personal situation.

 

The amendments also provide that employees can take up to twice as much annual leave at a proportionally reduced rate if their employer agrees.

 

Read the Fair Work Commission media release regarding Clerks Award amendments during the outbreak of coronavirus.

 

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