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As the COVID-19 pandemic drags on, an ongoing series of temporary amendments to the law has brought relief and confusion in equal measure. The key focus of the changes to date have been to enhance flexibility for employers in the management of their workforce.

The key changes made to Australia’s employment laws to date can be summarised as:

  • Targeted changes to specific modern awards, arising from joint applications made by unions and industry groups;
  • General changes affecting the vast majority of modern awards, made by the Fair Work Commission on its own initiative;
  • Changes to the Fair Work Act to implement the JobKeeper program and provide increased scope for standing employees down, varying their duties or changing their work location.

the unlucky few

On 24 March 2020, the Fair Work Commission granted an application made by the Australian Hotels Association and United Workers Union to insert a tailored flexibility schedule into the Hospitality (General) Award 2010. Subsequently, on 28 March and 31 March respectively, the Clerks – Private Sector Award 2010 and the Restaurant Industry Award 2010 were also amended following similar applications by interested parties.

The changes to these awards were designed to assist some of the hardest-hit industries and are due to expire after three months.

summary of targeted award changes

The Hospitality and Restaurant Awards, authorise employers to direct full-time staff to work reduced hours. An employer may require that part-time employees work between 60 and 100 per cent of their usual hours per week over the roster cycle.

Employers must ensure that they

  • consult with their employees prior to implementing any proposed changes; and
  • employees will continue to accrue annual and personal leave in accordance with the employee’s ordinary hours of work.

The Clerks Award amendments provide for:

  • reduction of the minimum ‘per shift’ hours of part-time staff to two consecutive hours;
  • employers can reduce their full-time and part-time employees’ hours of work to not less than 75% of their ordinary full-time hours, provided at least 75% of the affected employees have voted to approve the temporary reduction;
  • where a reduction in hours takes effect, the employee’s ordinary hourly rate will be maintained but the weekly wage will be reduced by proportionate reduction in hours.

Under the changes to all three awards, employees can also be directed by their employer to undertake supplementary or additional work across other classifications and duties subject to the duties being  safe, and within the employee’s qualification, skill or experience.

This enables an employer to find alternative work for their employees within the business if required (subject to certain exceptions).

Additional changes to annual leave provisions mean that, under each of these awards, employers have new minimum notice requirements when requesting that their staff take annual leave. It is important to be aware of how these changes affect employer obligations within each industry.

pandemic leave

The Fair Work Commission has also inserted an additional schedule into nearly all modern awards (103 of 122). This will enable employees to take two weeks of unpaid leave if they are unable to continue working due to circumstances associated with the COVID-19 pandemic.

During this period continuity of service is maintained and employees are protected from adverse action motivated by their absence. At this stage the leave must be commenced before 30 June 2020.

The Fair Work Commission has indicated that further awards are set to be amended in the coming weeks. Watch this space to keep up-to-date on whether your industry is affected by the changes.

JobKeeper

For information regarding JobKeeper, please see the dedicated section in Macpherson Kelley’s COVID-19 FAQ page, which also contains a host of other useful information regarding the legal issues associated with the pandemic.

stay up to date with our news & insights

a patchwork of flexibility for hospitality, restaurants and clerks during COVID-19

19 May 2020
oscar sach-haber barney adams

As the COVID-19 pandemic drags on, an ongoing series of temporary amendments to the law has brought relief and confusion in equal measure. The key focus of the changes to date have been to enhance flexibility for employers in the management of their workforce.

The key changes made to Australia’s employment laws to date can be summarised as:

  • Targeted changes to specific modern awards, arising from joint applications made by unions and industry groups;
  • General changes affecting the vast majority of modern awards, made by the Fair Work Commission on its own initiative;
  • Changes to the Fair Work Act to implement the JobKeeper program and provide increased scope for standing employees down, varying their duties or changing their work location.

the unlucky few

On 24 March 2020, the Fair Work Commission granted an application made by the Australian Hotels Association and United Workers Union to insert a tailored flexibility schedule into the Hospitality (General) Award 2010. Subsequently, on 28 March and 31 March respectively, the Clerks – Private Sector Award 2010 and the Restaurant Industry Award 2010 were also amended following similar applications by interested parties.

The changes to these awards were designed to assist some of the hardest-hit industries and are due to expire after three months.

summary of targeted award changes

The Hospitality and Restaurant Awards, authorise employers to direct full-time staff to work reduced hours. An employer may require that part-time employees work between 60 and 100 per cent of their usual hours per week over the roster cycle.

Employers must ensure that they

  • consult with their employees prior to implementing any proposed changes; and
  • employees will continue to accrue annual and personal leave in accordance with the employee’s ordinary hours of work.

The Clerks Award amendments provide for:

  • reduction of the minimum ‘per shift’ hours of part-time staff to two consecutive hours;
  • employers can reduce their full-time and part-time employees’ hours of work to not less than 75% of their ordinary full-time hours, provided at least 75% of the affected employees have voted to approve the temporary reduction;
  • where a reduction in hours takes effect, the employee’s ordinary hourly rate will be maintained but the weekly wage will be reduced by proportionate reduction in hours.

Under the changes to all three awards, employees can also be directed by their employer to undertake supplementary or additional work across other classifications and duties subject to the duties being  safe, and within the employee’s qualification, skill or experience.

This enables an employer to find alternative work for their employees within the business if required (subject to certain exceptions).

Additional changes to annual leave provisions mean that, under each of these awards, employers have new minimum notice requirements when requesting that their staff take annual leave. It is important to be aware of how these changes affect employer obligations within each industry.

pandemic leave

The Fair Work Commission has also inserted an additional schedule into nearly all modern awards (103 of 122). This will enable employees to take two weeks of unpaid leave if they are unable to continue working due to circumstances associated with the COVID-19 pandemic.

During this period continuity of service is maintained and employees are protected from adverse action motivated by their absence. At this stage the leave must be commenced before 30 June 2020.

The Fair Work Commission has indicated that further awards are set to be amended in the coming weeks. Watch this space to keep up-to-date on whether your industry is affected by the changes.

JobKeeper

For information regarding JobKeeper, please see the dedicated section in Macpherson Kelley’s COVID-19 FAQ page, which also contains a host of other useful information regarding the legal issues associated with the pandemic.