What are the challenges for employers?
Employers have obligations for the health and safety of their employees and to protect their personal data.
In response to COVID-19, the Clerks — Private Sector Award 2010 (Clerks Award), which applies to employees who perform clerical and administrative work (unless another modern award applies to them) has been varied.
REMEMBER: Modern awards, which are made by the Fair Work Commission (Commission), set the minimum terms and conditions which apply to the employment of a significant proportion of employees across Australia. Many modern awards have been varied with a view to introduce flexibility for resourcing business and managing employees during the COVID-19 pandemic.
Variations to the Clerks Award take effect by way of a temporary schedule and address issues including:
An overview of the variations is set out below.
|Operational flexibility||Employees can be directed to perform any duties that are within their skill and competency, provided the duties are safe and the employee is licensed and qualified to perform them. In practice, this means that the employer can require employees to perform duties above or below their usual classification. However, an employer cannot reduce an employee’s pay because of alternate duties, and an employee can refuse to perform duties that are (objectively) unsafe.|
|Ordinary hours of work for employees working from home||
With many employees now working from home, the spread of ordinary hours of work for day workers has been broadened to between 6:00 am and 11:00 pm Monday to Friday, and between 7:00 am and 12:30 pm on Saturday.
Maximum hours per day still apply, and the employee must agree to the hours that they will work.This reduces spending if employees need to work outside of the usual hours as these hours may previously have attracted penalties.
|Part-timers and casuals working from home||
Employers are required to roster a part-time employee who is working from home for a minimum of two consecutive hours on any shift.Casual employees working from home must be paid a minimum payment of two hours’ work, at the appropriate rate.
|Agreed temporary reduction of ordinary hours||
Employers and employees can agree to temporarily reduce ordinary hours of work across a whole workplace or part of a workplace. At least 75% of employees in the workplace or relevant part must approve the agreement for it to apply across the work area.
REMEMBER: This does not prevent employers and employees from agreeing to a change by consent on an individual basis.
Following a vote, hours may be reduced by up to 25% of the previous ordinary hours. For example, for full-time workers on a standard 38 hour week, the hours may be reduced by up to 9.5 hours per week.
The ordinary hourly rate remains the same, but the weekly wage is reduced by the relevant percentage. If hours are reduced, an employer cannot unreasonably refuse an employee's request to engage in reasonable secondary employment (i.e. asking for permission to get a second job) and must consider all reasonable requests for training, professional development and/or study leave. Importantly, all relevant accruals and termination entitlements are based on the pre-existing ordinary hours of work (not the reduced hours).REMEMBER: The Commission has prescribed a process for conducting a vote to agree to temporarily reduce ordinary hours of work. You should consider obtaining advice to ensure that a vote is valid.
Employers can require employees to take annual leave. The employer must provide the employee with one week's notice, and this cannot leave the employee with less than 2 weeks of annual leave on their return. If the employee agrees, a shorter period of notice may be given.In addition, an employer and employee can agree that an employee will take up to twice as much annual leave at a proportionately reduced rate. In effect, this means that the employee could take the leave at half pay, in order to save leave balances or to extend the period of leave.
|Close down||In addition to the provisions about annual leave above, if an employer decides to implement a close down, employees can be required to take annual leave on at least one week's notice. If the employee does not have sufficient annual leave for the close down, they may take unpaid leave. However, the period of unpaid leave counts as service for the award and NES entitlements.1|
These variations are in effect from 28 March 2020 until 30 June 2020. This period may be extended upon application to the Commission. The Commission will hear any disputes about the application of these variations.
Other modern awards have also been varied in a similar way to the Clerks Award, including the Hospitality Industry (General) Award 2010 and the Restaurant Industry Award 2010.
Additionally, many awards, including the Social, Community, Home Care and Disability Services Industry Award 2010, have been varied at the initiative of the Commission to include a temporary schedule which provides for:
These updates are applicable to Australian law only and are generic in nature. If you have any specific legal concerns relating to the impact of COVID-19 on your people or your business, please reach out to our pro bono team (email@example.com) and we will consider your pro bono legal request. If we aren’t able to help you, we will try to find someone else who can. This update is current as at 21 May 2020.
The National Employment Standards (NES) are 10 minimum employment entitlements that have to be provided to all employees. For more information, visit the Fair Work website.
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© Norton Rose Fulbright LLP 2020