This article is from a member of HR@Work
Quick action by the Fair Work Commission
Following an expedited hearing this morning, the Fair Work Commission has now handed down its decision in the Clerks-Private Sector Award, varying employment conditions for 1 million+ clerical workers in response to COVID-19.
These amendments are due to a commendable and unprecedented level of cooperation between the Australian Chamber of Commerce and Industry (ACCI), Ai Group, the Australian Council of Trade Unions and Australian Services Union (with ACCI represented by Australian Business Lawyers & Advisors throughout the process).
To quote from the decision directly: “The measures encompassed in the variation strike an appropriate balance between the provision of additional flexibility and treating affected employees fairly. As Mr Ward, on behalf of ACCI, put it in oral argument during the course of commending the role played by the ASU and ACTU: ‘ these are times for humility, courage and generosity of spirit.’ In our view these qualities have been amply demonstrated by all of those involved. We commend the parties on the balanced nature of the agreed package.”
Clerks-Private Sector Amendments
The key amendments to the Award, which will be included in a schedule attached to the Award, are outlined below:
Date and Operation
Effective immediately these amendments will operate until 30 June 2020, unless extended.
Operational Flexibility
This amendment allows employees to be directed to perform all duties that are within the employees skill and competency (even if they are lesser duties) regardless of their classification provided the duties are safe and the employee is qualified to perform them, without the reduction of pay.
Working from Home
These amendments have been broken down to address part-time and casual employees under working from home arrangements:
Spread of hours: Where an employee requests to work from home, and the employer agrees, the spread of hours has been expanded to 6am-11pm Monday-Friday and 7am-12.30pm on Saturday.
Part-time employees: Are required to be rostered for a minimum of two hours working from home and become entitled to overtime rates worked in excess of 38 hours per week, or an average of 38 hours per week on a roster system.
Casual employees: May be engaged for a newly reduced minimum of two hours work when working from home.
Agreed temporary reduction in hours by a majority in the workplace
This allows full-time and part-time employees in a workplace, or part of a workplace, to agree to temporarily reduce ordinary hours for a specified period for the whole workplace or relevant part of it, by a 75% majority vote by employees. The employees must vote on whether to reduce hours or not, and if there is a union involved in the workplace, they must be informed. Additionally, the FWC must be notified of the vote pursuant to the process outlined in the Schedule to the Award.
The reduction in working hours is limited to a 25% reduction or less.
For example: An employee who is employed for five days per week can have their days of work reduced to four days per week pursuant to this clause. For a part-time employee working four days per week, they could have their days reduced to three days per week.
To illustrate the ‘part of a workplace’, if you have separate arms of your business, for example, office staff vs call centre staff, the employees can vote to reduce hours in office section but not the call centre section.
Where hours are reduced, the employee’s ordinary hourly rate will stay the same. The employee will still continue to accrue entitlements at their ordinary hours of work prior to the agreement to reduce hours.
The amendment does not prevent an employer and an individual employee agreeing to reduce hours or to have an employee move temporarily from full-time to
part-time hours of work, with the corresponding reduction in the weekly wage.
Annual Leave
Employers and employees may agree to the taking of up to twice as much annual leave at a proportionately reduced rate, including during any close-down.
An employer may direct an employee to take any accrued annual leave, by giving at least one week’s notice, or any shorter period as agreed. A direction to take annual leave shall not result in an employee having less than two weeks of accrued annual leave remaining.
Close-down
Where an employee is required to take annual leave during a close-down of operations, or part of its operations, the employer must give at least one week’s notice.
During a close-down, an employee can take all of their annual leave and then will be given leave without pay for the remainder of the shutdown.
Any close-down of operations must not extend beyond 30 June 2020. However, these amendments to the Award do not impact upon the operation of section 524 of the Fair Work Act 2009 where an employee stands down employees for reasons beyond the control of the employer where there is a stoppage of work.
These are temporary amendments to the Clerks – Private Sector Award 2010 in response to the crisis facing Australian business in the wake of the COVID-19 pandemic.
