In addition to the general temporary adjustments to Federal Modern Industrial Awards, the Fair Work Commission (FWC) recently handed down an additional specific determination which amended (temporarily) the Clerks – Private Sector Award 2010 (Award) in an attempt to preserve the viability of businesses and jobs during the COVID-19 pandemic (FWC Determination).
The amendments introduced in the FWC Determination provide employees some flexibility in changing an employee’s ordinary hours of work and providing notice regarding annual leave. The changes operate from 28 March 2020 until 30 June 2020 (and such end date can be extended on application to the FWC).
We have summarised below some key issues regarding how the recent amendments affect employees and employers subject to the Award.
Application of the Award and the FWC Determination
The Award applies to employers in the private sector throughout Australia with respect to their employees engaged wholly or principally in clerical work, including administrative duties of a clerical nature, and to those employees.
The Award does not apply to:
an employer bound by a different modern award that contains clerical classifications; or
an employee who is excluded from award coverage by the Fair Work Act; or
an employee covered by an enterprise award or enterprise instrument.
Variation - Employee’s duties
Standard arrangement under the Award
Employees subject to the Award are usually classified by reference to different ‘levels’ depending on the employment role being performed as defined in the Award . For each ‘level’, the Award sets out the characteristics of employees at the relevant level (e.g. the level of workplace experience), the typical skills and duties to be performed by employees at the relevant level, and minimum renumeration for each level.
Change under FWC Determination
Regardless of an employee’s classification “level” under the Award, employers may now direct employees to perform any duties that are within the employee’s skill and competency. The requested duties must be safe and the employee must be licensed (if relevant) and qualified to perform such duties.
If an employee is requested to perform duties that are usually relevant to a classification ‘lower’ than the employee’s usual classification “level”, the employer must not reduce that employees usual pay – the employee should receive their usual pay as though the employee is carrying out its usual duties.
Variation - Minimum hours for part-time employees
Standard arrangement under the Award
Under the Award, employers are usually required to roster a part-time employee for a minimum of three consecutive hours on any shift.
Change under FWC Determination
Employers who are rostering a part-time employee who is working from home (by agreement with the employer), need only roster the employee for a minimum of two consecutive hours on any shift.
Variation - Minimum pay for casual employees
Standard arrangement under the Award
Under the Award, casual employees are usually entitled to a minimum payment of three hours’ work at the relevant rate.
Change under FWC Determination
Casual employees who are working from home (by agreement with the employer) are only required to be paid a minimum payment of two hours’ work at the relevant rate.
Variation – Spread of hours when working from home
Standard arrangement under the Award
Under the (unvaried) Award, the ordinary hours of work for employees other than shiftworkers may be worked from 7.00 am to 7.00 pm Monday to Friday and from 7.00 am to12.30 pm on Saturdays. The employer and employee can alter the spread of hours by up to one additional hour at either end of this work hour spread.
Change under FWC Determination
Where requested by the employee and agreed by the employer, for workers working from home (by agreement with the employer), the spread of ordinary hours of work for day workers is between 6.00 am and 11.00 pm, Monday to Friday, and between 7.00 am and 12.30 pm on Saturday.
Where this altered spread of hours applies, the spread of hours cannot be altered further by an additional one hours at either end of this revised spread.
Variation - Agreed temporary reduction in ordinary hours
Standard arrangement under the Award
The Award sets out an employee’s ordinary hours of work, which, for day workers, is to be an average of 38 per week but not exceeding 152 hours in 28 days, or an average of 38 over the period of an agreed roster cycle.
Change under FWC Determination
Employers, and the full-time or part-time employees in a workplace or section may now agree to temporarily reduce ordinary hours of work, subject to the following key principles:
at least 75% of the full-time and part-time employees in the relevant workplace or section must approve any agreement to temporarily reduce ordinary hours (determined by a documented vote of employees and, if relevant, provided that the applicable union is informed of such decision);
the reduction in working hours may not exceed a 25% reduction in an employee’s full-time ordinary hours, or agreed hours (as applicable), immediately prior to the implementation of the temporary reduction in ordinary hours;
the employee’s ordinary hourly pay rate must be maintained (however, the weekly wage will be reduced in proportion to the number of reduced hours);
where an employee’s hours are reduced, employers cannot unreasonably refuse an employee’s request to engage in reasonable secondary employment; and
where an employee’s hours are reduced, all relevant accruals and all entitlements on termination of employment will continue to be based on the employee’s weekly ordinary hours of work according to their employment agreement and the Award, as they were, prior to the commencement of the FWC Determination (being 28 March 2020).
Employers and employees remain free to agree (in writing) to reduce an employee’s hours on an individual basis, or temporarily change from full-time to part-time employment.
Variation - Annual Leave
Standard arrangement under the Award
The Award sets out certain processes for dealing with excessive leave accruals (i.e. when an employee has accrued more than 8 weeks’ paid annual leave (or 10 weeks’ paid annual leave for a shiftworker). For instance, the Award provides that the employer or the employee may seek to discuss and try to reach agreement on how to reduce or eliminate the excessive leave accrual, and if such agreement is not reached, the employer may direct the employee in writing to take annual leave on certain conditions.
Change under FWC Determination
An employer may now, on one week’s notice (or any shorter period that may be agreed) direct an employee to take any annual leave that has accrued, subject to considering the employee’s personal circumstances. Notwithstanding this change, a direction to take annual leave must not result in an employee having less than 2 weeks of accrued annual leave remaining.
Employers and individual employees may also agree to take up to 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.
Variation – Leave To Be Taken During A Shutdown
Standard arrangement under the Award
The Award usually requires an employer to provide an employee at least four weeks’ notice if the employee is required to take annual leave as part of a close-down of its operations.
Change under FWC Determination
Employers need now , only provide employees one weeks’ notice (or any shorter period, if agreed) if the employer requires the employee to take annual leave as part of a close-down of its operations.
If an employee has not accrued sufficient annual leave to cover part or the entire period of the shutdown, the employee will be allowed to exhaust their annual leave and then take unpaid leave for the remainder of the shutdown (if applicable). The taking of such unpaid leave will count as ‘service’ for the purposes of the Award and any entitlements under the National Employment Standards.
A copy of the determination can be found here.
The principles outlined in this information sheet are for guidance only and specific responses and advice will vary depending on the particular facts of your circumstances. The content above is therefore general information only and should not be relied upon as legal advice.
If you have any questions about how these changes may impact you, please email us or give us a call on +61 (2) 9300 3100.