On 28 March 2020, the Fair Work Commission agreed to vary the Clerks – Private Sector Award in response to the significant impact that the COVID-19 pandemic has had on employers and employees where this Award has application and coverage.
A temporary schedule was inserted into the Award to provide some flexibility for employers in relation to employees working from home, the range of duties employees can be required to perform, the reduction of ordinary hours of work and directing employees to take annual leave.
The temporary schedule will operate from 28 March 2020 until 30 June 2020, unless extended by the Commission.
Under the new schedule (schedule I):
- an employer can direct an employee to perform any duties that are within their skill and competency regardless of their classification, provided that the duties are safe and the employee is licenced and qualified to perform them. An employer must not reduce an employee’s pay if they are directed to perform other duties.
- there is some flexibility in relation to employees working from home aimed at assisting them to better juggle work and home commitments, including:
- that the minimum engagement periods for part-time and casual employees who are working from home is reduced to a minimum of 2 hours;
- where an employee working from home requests and the employer agrees, the spread of ordinary hours of work for day workers is between 6:00am and 11:00pm, Monday to Friday and between 7:00am and 12.30pm on Saturday.
- an employer can direct an employee to take accrued annual leave by giving 1 weeks’ notice or a shorter period of notice as agreed, subject to considering the employee’s personal circumstances. Such a direction cannot result in the employee having less than 2 weeks of accrued annual leave remaining.
- employers and employees can agree to an employee taking twice as much annual leave at a proportionately reduced rate for all or part of any agreed or directed period away from work, including any close-down.
- an employer may require an employee to take annual leave as part of a close-down of its operations (or part of its operations) by giving at least 1 weeks’ notice, or any shorter period of notice that may be agreed (the previous period of notice was 4 weeks). In relation to this:
- where the employee has not accrued sufficient leave to cover the close-down, the employee can be paid annual leave for the period for which they have accrued sufficient leave and given unpaid leave for the remainder of the close-down.
- any period of unpaid leave will count as service for the purposes of the award and NES entitlements, meaning, for example, that the employee will continue to accrue annual leave whilst on unpaid leave.
- an employer and employees in a workplace or section of a workplace, may agree to temporarily reduce ordinary hours of work for a specified period. There are some restrictions on this as well as a number of steps that must be taken before such a reduction can take place (these can however be avoided as noted below), including that:
- the ordinary hours can only be reduced to not fewer than 75% of the existing full-time or part-time hours;
- the employee’s hourly rate will be maintained but the weekly wage will be reduced by the relevant proportion;
- an employer cannot unreasonably refuse an employee’s request to engage in secondary employment and must consider all reasonable requests for training and study leave;
- all relevant accruals and entitlements on termination will continue to be based on an employee’s hours of work prior to the commencement of the schedule;
- at least 75% of the relevant employees must approve any agreement to temporarily reduce ordinary hours. The approval must be determined by a vote which involves certain pre-vote requirements such as providing employees with the contact details of the Australian Services Union, informing the Union or other organisation with known employee members before the vote takes place, notifying the Fair Work Commission and then waiting 24 hours after these requirements have been met.
Importantly, the schedule itself states that there is nothing to prevent an employer and individual employee from agreeing in writing to reduce an employee’s hours or moving an employee from full-time to part-time hours with a commensurate reduction in their wage.
Contact us to obtain advice on how to best approach and record such an agreement with an employee.
If you have employees who are covered by the Clerks Award and would like further information on the temporary flexibility schedule or if you are considering applying the provisions in the schedule to your workers, we recommend that you contact us to discuss your specific circumstances and the requirements and impact of the temporary provisions.
Disclaimer: The information contained this article is general and intended as a guide only. Professional advice should be sought before applying any of the information to particular circumstances. While every reasonable care has been taken in the preparation of this update, Aitken Legal does not accept liability for any errors it may contain. Liability limited by a scheme approved under professional standards legislation.