The Fair Work Commission has announced the decision to extend the temporary Schedule “Award Flexibility During the COVID-19 Pandemic” in a number of modern awards due to the ongoing impact of COVID-19 on workplaces.

This decision will affect the Schedules inserted into the below modern awards:

 

They have also announced amendments to some of these Schedules, which will be in operation from 1 July 2020.

Separately, the Fair Work Commission has extended the date that the entitlement to unpaid pandemic leave and annual leave at half pay will cease in several modern awards. See the Fair Work Ombudsman’s website for full details.

 

What is “Award Flexibility During the COVID-19 Pandemic” Schedule?

The Award Flexibility Schedules were added to select modern awards as a temporary response to the impact of COVID-19.

These Schedules were intended to give employers greater flexibility in the workplace, to assist in minimising the impact COVID-19 would have on employers and employees. These were originally due to end as of 30 June 2020.

See below links to our past blogs on award flexibility during the COVID-19 pandemic;

Clerks Award amendments to help businesses during coronavirus

Restaurant Industry Award flexibility during coronavirus

Changes to modern awards from 13 April 2020

Changes to the Educational Services Award and the Vehicle Award

Changes to the Fast Food and Vehicle Awards

 

Changes to the Restaurant Industry Award 2010 & Hospitality Industry (General) Award 2010

Schedule I in the Restaurant Industry Award 2010 and Schedule J in the Hospitality Industry (General) Award 2010 will now be extended to operate until 27 September 2020. However, the decision was made to vary the following provisions which were contained within these schedules:

JobKeeper Employees

Employees in the JobKeeper scheme are now excluded and will instead be covered by the temporary amendments made to The Fair Work Act 2009 (Cth).

 

Watch our webinar recording on "When JobKeeper ends... The latest updates for Australian employers!" held on Friday 24 July 2020.

Additional Provisions for directions relating to Hours of Work

From the first full pay period on or after 1 July 2020, if an employer gives a direction under these Schedules, they will be required to inform the employee in writing that the employer agrees to the Commission arbitrating any disputes about that direction.

Any direction given under these Schedules stops applying at the earlier date of either:

  • when the employer withdraws, revokes or replaces the direction; or
  • on 27 September 2020.

 

Further, from 1 July an employer can only reduce a full-time or part-time employee’s hours if:

  • The direction is reasonable in all the circumstances;
  • The direction is in writing;
  • The employee can’t be usefully employed for their normal days or hours during the period of the direction because of business changes attributable to:
    • The coronavirus pandemic; or
    • Government initiatives to slow the transmission of coronavirus.

 

Employees directed to work reduced hours under the award flexibility extensions will be able to request reasonable secondary employment, training, or professional development. Employers can only refuse these requests where it is reasonable.

 

Additional safeguards around directions related to Annual Leave

Under the amended Schedule provisions, an employer will no longer be able to direct an employee to take annual leave. The employer will now be able to request an employee take annual leave only if:

  • The request is reasonable;
  • The reasons for the request are attributable to the coronavirus pandemic or Government initiatives to slow the transmission of coronavirus;
  • It is necessary to help the employer prevent or minimise the loss of employment;
  • The request is in writing;
  • The employer takes into account their employee’s personal situation;
  • The employee will still have at least 2 weeks’ accrued annual leave left after taking the leave.

 

The employee has to consider the request and can’t unreasonably refuse it. Any annual leave under this provision must start before 13 September but can end after that date.

Agreements can now be made to allow employees to take Annual Leave at half pay for double the time off work.

 

Closure of Business Provisions

The Fair Work Commission has also removed the previous provisions around the closure of a business.

 

Changes to the Clerks – Private Sector Award 2010

Schedule I in the Clerks – Private Sector Award 2010 will now be extended to operate until 30 September 2020. However, the following provisions have been altered within the Schedule:

Additional conditions around giving employees directions under Schedule I

From the first full pay period on or after 1 July 2020, any direction or request given by an employer under this Schedule:

  • Has to be made in writing;
  • Has to outline that the employer agrees to the Commission arbitrating any disputes about the direction;
  • Cannot be unreasonable in all of the circumstances.

 

Importantly, under the amended provisions, employers can only utilise the reduction in hours provisions under Schedule I, if they have already utilised them before 30 June 2020.

Employees who have had their hours temporarily reduced under these provisions will now be able to request their employers for another vote to confirm that their hours will continue to be reduced for a longer period.

This vote must be conducted within 7 days of the employees request. Failure to hold a re-vote, or if the result of the vote doesn’t support an ongoing reduction in hours, will mean the reduced hours will no longer apply under the award flexibility extension.

 

Additional safeguards around requests to take annual leave

Similarly, to the Restaurant and Hospitality Awards, under the amended Schedule provisions, an employer will no longer be able to direct an employee to take annual leave. The employer will now be able to request an employee take annual leave only if:

  • The reasons for the request are attributable to the coronavirus pandemic or Government initiatives to slow the transmission of Coronavirus;
  • It is to help the employer to prevent or minimise loss of employment;
  • The request is in writing;
  • They take into account the employee’s personal situation;
  • The employee will still have at least 2 weeks’ accrued annual leave left after taking the leave;
  • They make the request at least 72 hours before they want the employee’s annual leave to start;
  • The employee has to consider the request and can’t unreasonably refuse it.

 

The employee has to consider the request and can’t unreasonably refuse it. Any annual leave under this provision must start before 30 September 2020 but can end after that date.

Agreements can now be made to allow employees to take Annual Leave at half pay for double the time off work.

 

Provisions that have been removed under the review

The Fair Work Commission has also removed the previous provisions around the closure of a business, the ability for employers to direct employees to perform different duties and the reduced minimum engagement/pay periods for casual and part-time employees.

 

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Changes to the Vehicle Repair, Services and Retail Award 2020

Schedule I under the Vehicle Repair, Services and Retail Award 2020 will now be extended to operate until 31 July 2020.

The Fair Work Commission did not make any significant changes to the previous provisions that were included within the original schedule, however, have made the decision to not extend certain parts of Schedule I beyond 30 June 2020, including:

  • The ability for employers to direct employees to perform different duties;
  • Closure of business provisions.

 

 

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Disclaimer

The information provided in these blog articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact Employment Innovations for advice.

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