Award Flexibility during the COVID-19 Pandemic

Some awards have been varied to include greater flexibility in rostering and associated arrangements under three awards – the Hospitality Industry (General) Award 2010, Clerks Private Sector Award 2010 and now the Restaurant Industry Award 2010.

In a general sense, the variations are similar and include the following elements:

Hospitality and Restaurant Awards

  • Classifications flexibility – allows the employer to direct employees to perform any duties that are within their skill and competency regardless of their classification.
  • Hours of Work flexibility:

o Full time employees may work reduced average hours of work between 22.8 and 38 ordinary hours per week paid on a pro rata basis.

o Part time employees may work reduced average hours of work between 60% and 100% of their guaranteed hours per week or roster cycle.

o Before changes are made the employer must consult with the affected employees, and notify the relevant union of the affected employees if the employees are members of the union.

o Employees continue to accrue annual leave and personal leave based on their ordinary hours of work prior to any change.

o Where employees take annual leave or personal leave, the payment for the leave will be based on their hours of work prior to the change.

  • Annual leave:

o an employer, after considering the employees’ personal circumstances, may direct the employee to take annual leave with 24 hours’ notice.

o despite this, the employer and employee may agree to the taking of annual leave at any time.

o the employer and employee may agree to the taking of twice as much annual leave at half the rate of pay for all or part of the leave.

Clerks Award

Similar concepts have been applied, but with a more complicated approval process.  Crucially it allows individual agreements to change employment from full-time to part-time (see details below). Other changes are –

  • Operational Flexibility – allows the employer to direct employees to perform any duties that are within their skill and competency regardless of their classification.
  • Working from home

o Part-time and casuals – a 2 hour minimum engagement instead of 3 hours.

o Working from home ordinary hours of work – by agreement after a request from the employee involved, the spread of ordinary hours of work for day workers is changed to be between 6.00am and 11.00pm Monday to Friday and between 7.00am and 12.30pm on Saturday.

o Day workers are not shift workers under this arrangement, so no penalties, loadings or allowances are applicable.

  • Agreed temporary reduction in ordinary hours

o An employer can agree with full-time and part-time employees to temporarily reduce ordinary hours of work in the workplace or section of the workplace.

o At least 75% of the full-time and part-time employees in the workplace or section must approve any agreement to reduce ordinary hours.

o Any agreed reduction must not be fewer than 75% of the full-time ordinary hours or not fewer than 75% of the part-time agreed ordinary hours that were applicable prior to the temporary reduction.

o The ordinary hourly rate is maintained but paid on the reduced hours of work.

o Despite this provision, an employer and an individual employee can agree in writing (including by electronic means) to temporarily move the employee from full-time to part-time hours of work with a commensurate reduction in the weekly wage.

o Where hours have been reduced, the employer must not unreasonably refuse an employee request to engage in secondary employment and consider any reasonable requests for training, professional development and/or study leave.

  • Annual leave and personal leave accruals and termination payments – the calculations of accrued entitlements are based on the hours or work applicable prior to the temporary reduction of hours of work.
  • Approval process

o There is a requirement to vote on the reduction of hours of work in a workplace or section.

o Where employees are known to be members of the Australian Services Union or other organisation, the union must be informed before the vote takes place.

o Prior to the vote of employees, the employer will provide employees with the contact details for the ASU.

o The employer must also notify the Fair Work Commission by email about the proposal to conduct a vote and email contact details for the employees involved.

o The vote takes place at least 24 hours after this notification process has taken place.

  • Annual leave

o Employers and individual employees may agree to take twice as much annual leave on a proportionately reduced rate for any agreed or directed period of annual leave.

o An employer can provide a week’s notice or any agreed shorter period of notice of the requirement to take leave.

o A direction to take leave will not result in less than 2 weeks of accrued annual leave remaining.

  • Close down

o An employer may require an employee to take annual leave as a part of a close-down with at least one week’s notice or a shorter period by agreement.

o Where an employee is on unpaid leave as a part of the close-down, if they do not have enough annual leave accrued the period of unpaid leave counts as service for accrual of entitlements. 

Employers will need to follow the processes detailed in the Determinations:

Click here for the Hospitality (General) Award 2010

Click here for the Clerks Private Sector Award 2010

Click here for the Restaurant Industry Award 2010

 

Any queries about the issues in this article or if you need help with other employee relations issues? Contact us on 1300 55 66 37. 

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