On 28 March 2020, the Fair Work Commission (the Commission) made a determination varying the Clerks Private Sector Award (Clerks Award). The determination inserted a special new COVID-19 flexibility schedule (Schedule I) which will have effect from 28 March 2020 until 30 June 2020.

Schedule I adds award flexibility during the coronavirus outbreak for the following:

1. Employees’ classifications and duties

That is an employer has the right to direct an employee to work from home and perform duties that are within their skill and competency, even if those tasks aren’t in their usual classification or normal work as long as the tasks are safe and the employee has the appropriate licenses and qualifications to perform the tasks.

Employers who do tasks below their usual classification are still paid their usual rate, that is, employers must not reduce their pay.

However, if an employee works above their usual classification for more than one day, the employer must pay them the higher rate.

2. Minimum engagement/pay for part-time and casual employees

Part-time and casual employees who agree with their employer to work from home can have their minimum engagement reduced from 3 hours per shift to 2 hours per shift.

3. Span of hours changes while working at home

By agreement, ordinary hours of work for those working from home can now be:

• 6am – 11pm, Monday to Friday; and
• 7am to 12:30pm, Saturday.

4. Full-time and part-time employee’s hours of work

An employer and permanent employees in a workplace or section of a workplace may agree to temporarily reduce ordinary hours of work, however, at least 75 per cent of the permanent workforce in the relevant workplace or section must approve any agreement. Approval is sought by way of a voting process. The employer must follow these steps for the vote to be valid:

1. if an employee is a known member of a union, let the union know about the vote;
2. provide the employees with the contact details for the Australian Services Union (ASU), if they wish to contact the ASU for advice;
3. email clerksaward@fwc.gov.au about the vote and provide the employees’ private email addresses. The Commission will email the employees the ASU COVID-19 Information Sheet; and
4. hold a vote at least 24 hours after they have followed steps one to three.

Ordinary hours must not be reduced to less than 75 per cent of the full-time or part-time employees’ ordinary hours prior to any reduction.

All relevant accruals and all entitlements on termination of employment will continue to be based on ordinary hours prior to the commencement of the temporary arrangement.

If a reduction has occurred, the employer must not unreasonably refuse an employee’s request to seek secondary employment.

5. Directions to take annual leave

Employers can now direct employees to take annual leave by giving only one-week notice (or any shorter period if agreed), ensuring the employee returns with at least two weeks of accrued leave remaining.

If the business is closing for a period due to COVID-19 and the employee does not have enough annual leave to cover the closedown period, an employer can direct the employee to take a period of unpaid leave. This period of unpaid leave will count as a period of service for the purposes of relevant Award and NES entitlements.

If the employer agrees, employees can now take annual leave at reduce rates of pay.

A link to the summary of the Decision can be found here.

The coronavirus is having a devastating impact on thousands of businesses and millions of people. It is great to see the initiative of the Commission to allow flexibility in Modern Awards to allow us to adapt to this change.

If you require further information, please contact enableHR.