Various COVID-19 amendments to modern awards will continue: what do employers need to know?
By Fay Calderone and Jessica Luker
Throughout March and April 2020, the Fair Work Commission (FWC) made temporary COVID-19-driven amendments to a number of modern awards with the aim of supporting business continuity and preserving jobs. We previously reported on these changes here and here.
While the amendments were scheduled to end on 30 June 2020, the FWC has now granted some extensions. Employers must act immediately to recalibrate their payroll systems and ensure staff are being managed in accordance with the award underpinning their employment.
This update will outline the key changes with a particular focus on extensions to Schedule X (Additional measures during the COVID-19 pandemic) and amendments to the Clerks – Private Sector Award 2020.
Schedule X
On 8 April 2020, the FWC amended 99 awards to insert Schedule X. This provided an entitlement to two weeks of ‘unpaid pandemic leave’ and the flexibility to take twice as much annual leave at half pay. These entitlements have been extended until 31 July 2020 in the following awards:
- Fast Food Industry Award 2010;
- General Retail Industry Award 2010;
- Hair and Beauty Industry Award 2010;
- Storage Services and Wholesale Retail Award 2020; and
- The health sector awards (encompassing 9 different awards).
Schedule X was also extended in the Air Pilots Award 2020 until 31 December 2020 and the Live Performance Award 2010 until 30 June 2021.
The FWC is yet to decide on extending Schedule X in a number of other awards.
The Clerks – Private Sector Award 2020
The FWC extended the operation of Schedule I (Award flexibility during the COVID-19 pandemic), however varied some aspects of its operation.
While there were a number of variations, the key ones include:
- any direction by an employer under Schedule I must be given in writing and does not apply to the employee if the direction is unreasonable in all the circumstances;
- employees working from home are still able to spread out working hours without employers being required to pay penalty rates, however the spread from Monday to Friday is now 6.00 am to 10.00 pm rather than to 6.00 am to 11.00 pm;
- employees can no longer be directed by their employee to perform any duties within their skill and competency regardless of their classification;
- employers can no longer roster or pay a part-time or casual employee (respectively) who is working from home for a minimum of two hours work. Instead, employees are required to be rostered or paid for at least three hours;
- any employee who had their hours of work reduced pursuant to Schedule I prior to 1 July 2020 may request an employer to conduct a further vote to confirm the ongoing reduction in hours; and
- rather than giving one week’s notice when directing an employee to take annual leave, such a request need only be made a minimum of 72 hours before the date on which the annual leave is to commence. Employers and employees continue to be able to agree to take up to twice as much annual leave at a proportionally reduced rate.
These changes will continue until 30 September 2020.
Other changes
| Awards | FWC decision | Effect | Sunset date |
|---|---|---|---|
| Hospitality Industry (General) Award 2020 Restaurant Industry Award 2020 | Unopposed extensions via replaced COVID-19 variations. New schedules are in substantially similar terms. | Employees can continue performing alternative duties if qualified to do so. Employers can continue to direct employees to work reduced hours and take leave. Greater protections for employees: The exclusion of those covered by the Federal government’s JobKeeper scheme, as well as added safeguards around requests to take annual leave and directions to change an employee’s hours of work. | 27 September 2020 |
| Vehicle, Repair, Services and Retail Award 2020 | COVID-19 measures extended. | Employees can continue performing alternative duties if qualified to do so. Employers can continue to direct employees to work reduced hours and take leave. | 31 July 2020 |
How should employers respond?
The Employment & Workplace Relations team at Hall & Wilcox can assist employers to respond effectively to the changes. Employers should:
- update payroll systems to ensure that employees are being paid for the minimum number of hours under the relevant award;
- adjust your rostering practices – the hours that employees were rostered for last week may no longer be permissible under the relevant award;
- consider what duties employees are performing and whether this requires adjusting;
- ensure they are not making directions which contravene the changes to the awards. For example, employers need to make sure they give the correct amount of notice for a direction to take leave; and
- communicate with employees to advise them of how the awards have changed again.