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The Clerks – Private Sector Award is the latest award to have fast-tracked changes approved by the Fair Work Commission (“FWC”). It follows the amendments already made to the Hospitality Industry General Award 2010 and the NSW Long Service Leave Act 1955. The changes provide greater flexibility around hours of work, working from home and the taking of leave – and will temporally apply during the Coronavirus pandemic. Employers should not interpret these changes as a free-for-all; there are strict rules about implementation.
Clerks Award

In an urgent Saturday morning hearing, the FWC approved temporary variations to the Clerks – Private Sector Award 2010. It inserted a new Schedule IAward Flexibility During the COVID-19 Pandemic, which will operate from the fist pay period commencing on or after 28 March 2020. A comprehensive summary of the Decision, and a copy of the Schedule, can be accessed through this link on the Fair Work Commission Website.

Crucially, the variation was jointly agreed by ACCI, Ai Group, the ASU and the ACTU in response to the COVID-19 pandemic and the associated public health orders. Unless extended by FWC on further application, the changes automatically expire on 30 June 2020.

In summary, the changes:

• allow employers to insist that employees perform all duties within their skill and competence, but without a reduction in pay;
• permit work from home by agreement;
• reduce the minimum engagement from three to two hours if a part-time or casual employee works from home;
• if an employee working from home requests and the employer agrees – widen the span of ordinary hours for a day worker without incurring penalties;
• insert rules for employees to vote for reducing hours (but not hourly rate) – and a 75% majority is required for it to come into effect; and
• provide greater ability for employers to direct an employee to take accrued annual leave and for leave to be taken for longer periods at reduced pay.

Under the new Schedule the rules for voting to reduce hours are complex and require formal notification of the FWC and the ASU. Any employer considering such a request should take advice before raising it with employees.

Likewise, there are limits on the direction to take leave. Notably, the employee must be left with no less than two weeks’ leave. However, these changes could significantly assist employers to manager reduced workload.

Hospitality award

The Hospitality Industry General Award 2010 was similarly varied on 24 March. The flexibility on hours of work and rostering go further in that variation, which was jointly supported by Australia Hotels Association and the United Workers Union. The hospitality industry has been severely impacted by the government restrictions on public activity.

NSW Long Service Leave

The Long Service Leave Act 1955 (NSW) was varied by the NSW parliament on 25 March. The changes permit the taking of Long service leave with less than a month notice, and for broken periods of less than one month. The changes have a six months sunset provision.

Other changes

The Australian Industry Group has stated that it is working with the ACTU and individual unions to agree on and fast track temporary changes to other major awards during the Coronavirus pandemic. We will keep clients aware of any developments.

Another notable fast track approval was the FWC’s urgent approval on 25 March of “COVID-19
redeployment pay maintenance arrangements” agreed between DHL Supply Chain Australia and the United Workers Union. This settlement allows employees who are redeployed due to Coronavirus to maintain the terms of their existing enterprise agreements – for a 90-day review period – instead of being subject to complex agreement interaction rules that would make redeployment inefficient and legally risky.

Require further information/assistance? If you require further information or advice, please contact one of our consultants.

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