The Fair Work Commission has further extended the COVID-19 flexibility schedules in a number of modern awards.
In particular, the flexibilities in the Vehicle Repair, Services and Retail Award and Clerks – Private Sector Award have been extended until 30 November 2020. You can refer to our previous article regarding the original extension of the flexibilities in these awards here.
In addition, the Fair Work Commission has also extended the operation of “Schedule X-Additional measures during the COVID-19 pandemic” in 74 modern awards until 29 March 2021.
We explain the operation of the extended flexibility provisions below.
Clerks – Private Sector Award 2020
Employers have an ability to direct employees to reduce their hours under the flexibility schedule.
Employers can only use these reduction in hours provisions if they’d already used them before 30 June 2020. Other employers need to follow the normal rules about hours of work in the Clerks Award.
Employers who have already temporarily reduced their employees’ hours under Schedule I can continue to temporarily reduce their permanent employees’ hours of work to:
- not less than 75% of their full-time ordinary hours; or
- not less than 75% of their agreed part-time hours immediately prior to any reduction.
This can be for the whole business or a section of the business.
If an employer wants to reduce their employees’ hours to less than 75% of the number of hours stated above, the employees will need to vote in favour of it. At least 75% of the full-time and part-time employees in the business or section of the business have to approve the temporary reduction.
The employer needs to follow these steps for the vote to be valid:
- If any employee is a known member of the Australian Services Union (ASU) or another organisation, the employer must inform the ASU or the organisation know about the vote;
- The employer must provide the employees with the contact details for the ASU, if they wish to contact the ASU for advice;
- The employer must email firstname.lastname@example.org about the vote and provide the employees’ work email addresses. The Commission will email the employees the ASU COVID-19 Information sheet;
- The vote must take place at least 24 hours after the steps listed above have been taken.
If an employee’s hours were temporarily reduced under Schedule I before 1 July 2020, the employees can ask their employer for another vote to confirm that their hours will continue to be reduced for a longer period. This vote has to happen within 7 days of an employee asking for it. If the vote doesn’t happen, or the result of the vote doesn’t support an ongoing reduction in hours, the reduced hours will no longer apply from 7 days after the employee asked the employer to conduct the vote.
Any employee who has had their hours reduced can ask their employer for permission to:
- find more work with another employer;
- engage in training, professional development and study leave.
An employer can’t unreasonably refuse an employee’s request to engage in other reasonable work. An employer has to consider all reasonable requests for training, professional development or study leave.
Employees working reduced hours will continue to accumulate their paid leave and termination of employment entitlements based on their ordinary hours of work before the Schedule started.
An employer and employee can also individually agree in writing to reduce the employee’s hours. Employers are required to comply with the following requirements when giving any direction or request under the flexibility Schedule:
- they must be in writing;
- have to say that the employer agrees to the Commission arbitrating any disputes about the direction;
- can’t be unreasonable in all of the circumstances.
Employers can request an employee to take annual leave under the Schedule in certain circumstances. Employers can only make this request 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 annual leave has to start before 30 November 2020 but can end after that date.
Employees and employers can still agree for an employee to take annual leave at any time.
Employees can also agree with their employer to take up to twice as much annual leave at a proportionately reduced rate. This means that if an employee agrees with their employer to take annual leave at half pay, the employee gets payment for 1 week of annual leave for 2 weeks of annual leave. An employee on leave at half pay accumulates annual leave and sick and carer’s leave as if they were on leave at full pay.
If an employee takes annual leave under the provisions of Schedule I, the leave must start before 30 November 2020 but can end after this date.
Span of hours changes while working at home
Employees who are working from home can also come to an arrangement to change their span of hours. These employees can now work ordinary hours between:
- 6 am & 10 pm, Monday to Friday;
- 7 am & 12.30 pm, Saturday.
Individual employees can agree with their employer to change the spread of hours, it does not necessarily have to be by agreement with the majority of staff.
Vehicle Repair, Services and Retail Award 2020
Schedule I under the Vehicle Award has been extended until the 30 November 2020. Any direction that is made under this Schedule will cease on the 30 November or earlier if it is withdrawn or replaced by the employer.
Similar conditions apply to the Vehicle Award Schedule as the Clerks Award Schedule regarding the requirements when giving a request or direction and requesting annual leave.
Hours of work
Some employers can temporarily reduce the ordinary hours of their full-time or part-time employees. The reduction can only take place if the employee cannot be usefully employed for their normal days or hours because of business changes relating to:
- Coronavirus; or
- Government initiatives to slow the spread of coronavirus.
Employers can only use these provisions if they had already used these prior to 30 June 2020. Other employers need to follow the normal rules surrounding hours of work in the Vehicle Award.
Employers can reduce a full-time employee’s hours of work to an average between 22.8 and 38 ordinary hours per week. Employees need to be paid for the hours worked, any rules regarding ordinary hours of work apply on a pro-rata basis.
Some employees cannot have their hours reduced below a minimum amount of fortnightly pay. This includes:
- Full-time employees at Levels 1-5 – these employees need to work enough hours to be paid at least $1,115.70 a fortnight (not including allowances);
- Full-time Vehicle Industry Tradespersons at Level 1 or 2 – these employees need to work enough hours to be paid at least $1,500.00 a fortnight (not including allowances).
Employers can reduce a part-time employee’s hours of work down to an average of between 75% and 100% of their usual agreed hours per week (or per week over their roster cycle – if a roster cycle applies).
Part-time employees who previously earned more than $836.78 a fortnight for their agreed hours need to work enough hours to keep getting this amount. They cannot have their hours reduced so that they get less than $836.78 a fortnight (not including allowances).
How to reduce employee’s hours
If an employer wishes to reduce an employee’s ordinary hours of work under the Schedule, they will need to consult with the employees regarding the proposal. The employer will need to:
- follow the Vehicle Award’s consultation rules about changes to rosters or hours of work;
- provide as much notice as possible.
Employees still accrue entitlements and take leave based on their ordinary hours (prior to the reduction). If an employee with reduced hours is made redundant, their redundancy pay is calculated on their ordinary hours (their hours before the reduction).
Unpaid Pandemic Leave and Annual Leave Flexibility
The Commission has also extended access to unpaid pandemic leave and annual leave flexibility (annual leave at half pay) for employees in the Vehicle Award to 29 March 2021.
“Additional measures during the COVID-19 pandemic” Schedule extended in 74 modern awards
Schedule X provides an entitlement to unpaid pandemic leave and the flexibility for employees to take twice as much annual leave at half pay.
The Fair Work Commission has now made a decision that the operation of the Schedule will now continue until 29 March 2021 in the following awards:
1. Air Pilots Award 2020
2. Airline Operations-Ground Staff Award 2020
3. Airport Employees Award 2020
4. Alpine Resorts Award 2020
5. Aluminium Industry Award 2020
6. Amusement, Events and Recreation Award 2020
7. Animal Care and Veterinary Services Award 2020
8. Aquaculture Industry Award 2020
9. Architects Award 2020
10. Asphalt Industry Award 2020
11. Banking, Finance and Insurance Award 2020
12. Broadcasting, Recorded Entertainment and Cinemas Award 2010
13. Building and Construction General On-Site Award 2010
14. Business Equipment Award 2020
15. Car Parking Award 2020
16. Cement, Lime and Quarrying Award 2020
17. Cemetery Industry Award 2020
18. Children’s Services Award 2010
19. Cleaning Services Award 2020
20. Commercial Sales Award 2020
21. Contract Call Centres Award 2020
22. Corrections and Detention (Private Sector) Award 2020
23. Cotton Ginning Award 2020
24. Dry Cleaning and Laundry Industry Award 2020
25. Educational Services (Post-Secondary Education) Award 2020
26. Fast Food Industry Award 2010
27. Fitness Industry Award 2010
28. Food, Beverage and Tobacco Manufacturing Award 2010
29. Funeral Industry Award 2010
30. Gardening and Landscaping Services Award 2020
31. General Retail Industry Award 2010
32. Graphic Arts, Printing and Publishing Award 2010
33. Hair and Beauty Industry Award 2010
24. Higher Education Industry-General Staff-Award 2020
35. Horse and Greyhound Training Award 2020
36. Horticulture Award 2010
37. Hospitality Industry (General) Award 2020
38. Joinery and Building Trades Award 2010
39. Journalists Published Media Award 2020
40. Labour Market Assistance Industry Award 2020
41. Legal Services Award 2020
42. Local Government Industry Award 2020
43.Manufacturing and Associated Industries and Occupations Award 2020
44. Meat Industry Award 2020
45. Miscellaneous Award 2020
46. Mobile Crane Hiring Award 2010
47. Nursery Award 2020
48. Pastoral Award 2010
49. Pest Control Industry Award 2020
50. Pharmaceutical Industry Award 2010
51. Poultry Processing Award 2020
52. Premixed Concrete Award 2020
53.Professional Diving Industry (Recreational) Award 2020
54.Professional Employees Award 2020
55. Racing Clubs Events Award 2010
56. Racing Industry Ground Maintenance Award 2020
57. Rail Industry Award 2020
58. Registered and Licensed Clubs Award 2010
59. Restaurant Industry Award 2020
60. Salt Industry Award 2010
61. Seafood Processing Award 2020
62. Security Services Industry Award 2020
63. Silviculture Award 2020
64. State Government Agencies Award 2020
65. Storage Services and Wholesale Award 2020
66. Sugar Industry Award 2020
67. Surveying Award 2020
68. Textile, Clothing, Footwear and Associated Industries Award 2010
69. Timber Industry Award 2010
70. Vehicle Repair, Services and Retail Award 2020
71. Waste Management Award 2020
72. Water Industry Award 2020
73. Wine Industry Award 2010
74. Wool Storage, Sampling and Testing Award 2010
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