On 28 March 2020, the Fair Work Commission (the Commission) fast tracked amendments to the Clerks - Private Sector Award 2010 (the Clerks Award). The amendments are intended to respond to the impact of COVID-19 on employers and those engaged in clerical and administrative work, and are primarily focused on providing flexibility during the COVID-19 pandemic for:
- employees' classifications and duties;
- minimum engagement/pay for part-time and casual employees;
- span of ordinary hours changing while employees work from home;
- full time and part time employees' hours of work; and
- annual leave/close-down.
The amendments operate from an employee's first full pay period on or after 28 March 2020 until 30 June 2020. However, the period of operation can be extended on application to the Commission. The amendments are not intended to set any precedent in relation to entitlements under the Clerks Award after the expiry date. The primary aim of the amendments are preserving the ongoing viability of businesses and preserving jobs during this challenging time for both employers and employees.
Amendments have already been made to the Hospitality Industry (General) Award 2010 and we anticipate that similar amendments will also be made to a number of additional modern awards in the coming days and weeks.
We understand that many of you will have employees who are impacted by these amendments and to help you make the necessary adjustments, we have outlined below the changes that have been made to the Clerks Award.
Duties and Classifications
- Employers can direct employees to perform any tasks that they have the skill and competency for, regardless of whether those tasks are part of their normal work duties.
- An employee's pay rate will not change while they are performing different tasks.
- The tasks must be safe and lawful. Employers should ensure that the employee holds any required licenses or qualifications.
- If an employee is engaged in duties that carry a higher rate of pay under the Clerks Award than their normal work for more than one day, they will be entitled to be paid that higher rate for the day the duties are performed.
Minimum engagement/pay for part-time and casual employees (where working from home arrangement is agreed with the employer)
- Part-time employees who are working from home are required to be rostered on for a minimum of 2 consecutive hours on any shift.
- Casual employees who are working from home must be paid for a minimum of 2 hours' work at the appropriate rate.
Span of Ordinary Hours of Work - Working from Home
- For employees working from home who make a request and their employer agrees to that request, the spread of ordinary hours of work for day workers can be changed to between 6 am and 11 pm, Monday to Friday, and between 7 am and 12:30 pm on Saturday.
Hours of work for full-time and part-time employees
- Employers and permanent employees (in the workplace or a section of the workplace) are able to agree to temporarily reduce the hours they work while these changes are in operation.
- For full-time and part-time employees, ordinary hours of work may be temporarily reduced to not fewer than 75% of their respective full time or part time ordinary hours applicable to an employee immediately prior to the implementation of the temporary reduction in ordinary hours.
- Employees working reduced hours must be paid their ordinary hourly rate and be paid on a pro-rata basis (having regard to the percentage (%) of the agreed reduction). However, all leave accruals and entitlements on termination of employment will continue to be based on the employee's weekly ordinary hours prior to the implementation of the reduction.
Where an employee's hours of work have been reduced:
- the employer must not unreasonably refuse an employee's request to engage in reasonable secondary employment; and
- the employer must consider all reasonable employee requests for training, professional development and/or study leave.
- At least 75% of the full-time and part-time employees in the relevant workplace or section of the workplace must approve any agreement to temporarily reduce ordinary hours.
The approval of employees shall be determined by a vote of employees. In order for the vote to be valid, the employer must do the following:
- Where any of the employees are known to be members of the Australian Services Union (the ASU) or another organisation, the ASU or other organisation must be informed before the vote takes place;
- Prior to the vote of employees, the employer must provide the employees with the contact details of the ASU, should they wish to contact the ASU for advice;
- The employer must notify the Commission, by emailing email@example.com, that they propose to conduct a vote and provide to the Commission the work email addresses of the employees participating in the vote; and
- The vote must not take place until at least 24 hour after the above requirements have been met.
- An employer may direct an employee to take any annual leave that has accrued, subject to considering the employee's personal circumstances, by giving at least one week's notice, or any shorter period of notice that may be agreed. Such direction should not result in an employee having less than 2 weeks of accrued annual leave remaining.
- An employee can take leave at half pay for double the amount of time with the consent of their employer.
- An employer may require an employee to take annual leave as part of a close down of its operations by giving at least 1 weeks' notice or any shorter period of notice that may be agreed. Where there has been a business operations close-down and the employee has not accrued sufficient leave to cover part or all of the close-down, the employee is to be allowed paid annual leave for the period for which they have accrued sufficient leave and given unpaid leave for the remainder of the close-down.
- Where an employee is placed on unpaid leave due to a close-down, the period of unpaid leave will count as service for the purposes of relevant award and NES entitlements.