On 26 March 2020, an application to vary the Clerks – Private Sector Award 2010 (Clerks Award) was made jointly by the Australian Chamber of Commerce and Industry and the Australian Industry Group (Application).

The Application was supported by the Australian Council of Trade Unions and the Australian Services Union, and heard on an urgent basis and the Full Bench of the Fair Work Commission (Full Bench) issued its decision and determination varying the Clerks Award on 28 March 2020 which may be viewed in full here.

From 28 March 2020, a new Schedule I will be inserted into the Clerks Award. Schedule I will remain operative only until 30 June 2020, but this period can be extended on application to the Fair Work Commission.

What are the variations?

The temporary variations are substantially directed to providing increased flexibility around how work may be performed, and how employees may take or be directed to take annual leave as businesses grapple with the impacts of COVID-19.

These temporary variations are:

• An employer may direct employees to perform all duties within their skill and competency, regardless of classification.
• The minimum period of engagement of part-time and casual employees who are working from home with the agreement of their employer may be reduced from 3 hours to 2 hours.
• The spread of ordinary hours for dayworkers (being employees other than shift workers) working from home has been extended to 6am and 11pm Monday to Friday, while ordinary hours for Saturday will remain as between 7am and 12.30pm Saturday.
• An employer and its full-time and part-time employees in a workplace or section of a workplace may agree, by ballot with 75% approval by employees, to temporarily reduce the ordinary hours of work for a specified period between 28 March 2020 and 30 June 2020, but must not be reduced to fewer than 75% of the full time ordinary hours for a full time employee, or 75% of the part-time employee’s agreed hours immediately prior to the implementation of reduced hours. The employee’s hourly rate must be maintained but the weekly wage will reduce by the same proportion.
• An employer cannot unreasonably refuse an employee’s request to engage in reasonable secondary employment, and must consider all reasonable employee requests for training, professional development and/or study leave.
• Employers and individual employees can agree to take up to twice as much annual leave at a proportionately reduced rate for all or part of any agreed or directed period away from work, including a close-down.
• An employer may direct employees, subject to considering the employee’s personal circumstances, to take any annual leave that has accrued by giving at least 1 weeks’ notice or any shorter notice period agreed. An employee must not be left with less than 2 weeks accrued annual leave after taking the leave.
• An employer may, for a period between 28 March 2020 and 30 June 2020 require an employee to take annual leave as part of a close-down, or unpaid leave if the employee has insufficient accrued annual leave for all or part of the close-down, upon at least 1 weeks’ notice or a shorter period that may be agreed.
• All unpaid leave will count as service for the purposes of relevant award and NES entitlements.

Could other modern awards be varied in a similar manner?

Yes, on 30 March 2020, Restaurant & Catering Industrial, with the consent of the United Workers Union and the Australian Council of Trade Unions made an application to temporarily vary the Restaurant Industry Award 2010 to provide for temporary flexibilities to assist businesses and employees to respond to mandatory closures of sit down restaurant businesses.

This application comes after temporary variations were made to the Hospitality Industry Award 2010 on 24 March 2020.

Given the current extraordinary impacts that the COVID-19 pandemic has had on business, it is likely that further applications with bipartisan support between employer and employee organisations will be favourably received by the Commission.

Katie Sweatman
Special Counsel
+61 3 9958 9605
[email protected]