Award Flexibility during the COVID-19 Pandemic

Important Changes to the Clerks – Private Sector Award 2010

On 28 March 2020, the Fair Work Commission made a determination to vary the Clerks – Private Sector Award 2010 (Award). The variation temporarily included a new schedule to the Award, being Schedule I – Award Flexibility during the COVID-19 Pandemic.

Schedule I of the Award comes into effect after the first full pay period that starts on or after 28 March 2020 and will operate until 30 June 2020. However, Schedule I’s operation may be extended on application to the Fair Work Commission.

Schedule I of the Award provides flexibility to the Award during the COVID-19 pandemic in the following areas:

1. changes in employee’s duties;

2. minimum period of engagement per shift while working from home;

3. span of ordinary hours while working at home;

4. reduction of ordinary hours; and

5. directing employees to take annual leave.

Operational flexibility

Employees are paid in accordance with their classification as determined in accordance with the Award. These amendments to the Award enable an employer to direct their employee to perform any duties that are within their skill and competency level even if they are not usually included in the employee’s usual classification.

If the duties that your employee is required to perform are below the employee’s usual classification, your employee should still be paid at their usual rate of pay. However, if the duties your employee is required to perform are above your employee’s usual classification, your employee should be paid at the relevant higher rate.

Working from home

Part-time employees: A part-time employee working from home must be paid for a minimum of two consecutive hours on any shift. This has been reduced from a minimum of three hours.

Casual employees: A casual employee who is working from home must be paid a minimum of two hours at the appropriate rate. This has also been reduced from three hours.

Ordinary hours of work: An employee who is working from home, and who is not a shift worker, can change their spread of hours to be completed between:

• 6am and 11pm on Monday to Friday; and

• 7am and 12:30pm on Saturday.

Further, whilst mostly not relevant in our industry, dry workers won’t be considered shiftworkers for entitlements under the Award while these arrangements are in place.

Agreed temporary reduction in ordinary hours

Under the amendments to the Award, employers can temporarily reduce their permanent employees’ hours of work to not less than 75% of their full-time ordinary hours or agreed part-time hours immediately prior to the reduction. This reduction in hours can be for the whole of employees engaged by the business pursuant to the Award or just a section of the employees.

In order to do this, the employees will need to vote in favour of the reduction of hours. At least 75% of the relevant full-time and part-time employees must approve the temporary reduction. The following steps must be followed by the employer in order to put the reduction of hours to a vote:

1. if any of the employees are known to be members of the union, let the relevant 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 employees will receive a copy of the ASU COVID-19 Information Sheet from the Fair Work Commission; and

4. hold a vote once the above steps have been conducted.

Any employee that works reduced hours in accordance with this amendment will continue to accrue their paid leave and termination of employment entitlements based on their ordinary hours of work before the reduction in hours commenced.

Alternatively, an employer and an employee can individually agree in writing to reduce the employee’s hours of work.

Annual leave

Under the new changes, an employer can direct an employee to take any accrued annual leave, by giving one weeks’ notice (or any shorter period of notice that may be agreed) in the following circumstances:

1. the employee still has two weeks of annual leave remaining after the direction (except where there is a close down); and

2. the employer has considered the employee’s personal situation.

Further, an employer and employee may agree to take up to twice as much annual leave at a proportionally reduced rate including for any close-down.

Close down

If an employer is closing down for a period due to COVID-19, the employer may:

1. direct the employee to take annual leave in accordance with the above; or
2. where an employee has not accrued sufficient leave to cover the close down period, direct the employee to take unpaid leave for the remaining time.

Any unpaid leave the employee takes during this closure will still count as service for the purposes of the relevant award and National Employment Standards.  

Disclaimer: This summary is a guide only and is not legal advice. For more information on legislative or contractual obligations, call NECA Legal on 1300 361 099 or email law.clerk@neca.asn.au.