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Increased flexibility in Clerks Award in response to COVID-19

Libby Pallot, Walter MacCallum, Anthony Massaro, Ben Tallboys, Abbey Burns, Caitlin Walsh, Caitlin Meers, Natasha Sim, Morgan Smithe & Sophie Cusworth

Information current at date of publication: 30 March 2020. The average reading time for this Alert is 4 minutes.

The Fair Work Commission has varied the Clerks – Private Sector Award 2010 to allow greater flexibility to businesses to manage their workforce and preserve jobs throughout the COVID-19 pandemic. The amendments are in response to an urgent application by the Australian Chamber of Commerce and Industry and Ai Group, supported by the Australian Council of Trade Unions and Australian Services Union.

The amendments to the Clerks Award aim to provide greater flexibility to businesses and their employees in relation to working hours, annual leave, directions to take annual leave, and performance of duties. The changes commence from the first full pay period on or after 28 March and will operate until 30 June 2020, unless extended.

The key changes are as follows:

Employees can be directed to work across classifications.

Employers are able to direct employees to perform duties outside of their classification where it is required, and where the employee is competent to perform those duties. Importantly, an employee’s rate of pay cannot be reduced on the basis of this direction, even if an employee is required to perform lesser duties.

Hours of work may be reduced or varied across an increased spread of hours.

Part-time and casual employees who are working from home can have their minimum engagement period reduced from 3 hours to 2 hours. Any employees working from home will also be able to work across an extended spread of ordinary hours, between 6:00 am and 11:00 pm on weekdays and between 7:00 am and 12:30 pm on Saturdays, without attracting shift loading, and without the employer first having to obtain majority approval from employees.

A workplace or a section of a workplace may agree to a reduction in hours.

Employers and their part-time and full-time employees may agree, by a 75% majority vote, to temporarily reduce hours of work by up to 25%. The significance of this change is that previously, employers would need to obtain consent from every employee to achieve a reduction in hours.

Where hours are reduced, the hourly rate of pay will stay the same, but the weekly wage will be reduced to match the proportion of ordinary hours agreed upon. Leave entitlements will continue to accrue based on the employees’ pre-variation hours.

Where an employee’s hours are reduced under these circumstances, and the employee asks to undertake reasonable secondary employment, the employer cannot unreasonably refuse.

Annual leave entitlements can be used more flexibly, and employers may direct employees to take their annual leave in a broader range of circumstances

Employers may direct employees to take their accrued annual leave by giving one week’s notice if the reason is because of a COVID-19-related close-down. Where an employee does not have sufficient leave accrued for a close-down period, the employee may be required to use the annual leave that they have accrued and then to take unpaid leave for the remainder of the close-down.

If the business is not closing, an employer can still direct an employee to take annual leave, as long as the employee’s leave balance remains at or above 2 weeks. The employer must also consider the employee’s personal circumstances before giving such a direction.

This is a significant reduction in the complexity of arrangements around directing employees to take annual leave.

Finally, an employer may allow employees to take up to twice as much annual leave at a proportionally reduced rate of pay.

How we can help

Workplace laws are changing rapidly in order to address the unique problems arising from the COVID-19 pandemic. For further advice on managing your legal obligations in relation to the COVID-19 pandemic, please contact the Russell Kennedy Workplace Relations, Employment and Safety team. 

If you would like to keep in touch with Alerts and Insights from our expert Workplace Relations, Employment and Safety team, you can subscribe to our mailing list here.

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