The Fast Food Industry Award 2010 has been temporarily varied to allow greater flexibility for employers to –
- reach agreements with their part time workers in relation to hours of work, and
- to request that an employee take a period of annual leave.
The purpose of the variation is to preserve the ongoing viability of businesses and to preserve jobs during the COVID-19 pandemic. The new Schedule H covers employers and employees who do not qualify for JobKeeper payments and is intended to apply for a limited period from 19 May 2020 to 31 July 2020.
The following is a summary of the changes included in the new Schedule H to the Award:
Flexible part-time employment
Schedule H.7 will apply instead of clause 12 Part-time Employees, under the Award and allows the employer and the part-time employee to agree in writing:
- the number of hours of work which are guaranteed to be provided and paid to the employee each week or over the roster cycle, and
- the days of the week, the periods in each day when the employee will be available to work (i.e. the employee’s agreed availability).
The part-time employee is an employee who:
- Works at least 8 but less than 38 per week, compared to the award provision of a minimum of only 3 hours per week;
- Has reasonable predictable hours of work;
- Receives on a pro-rata basis, equivalent pay and conditions for those of full-time employees;
- Works a minimum 3 consecutive hours each shift; and
- A minimum 8 hours per week.
The employer and the employee must have genuinely made the agreement without coercion or duress.
Any agreement made is not valid unless the employer has advised the employee in writing that the employer consents to a dispute about whether the agreement was genuinely made being settled by the Fair Work Commission through arbitration under clause 9.5 Dispute Resolution and s739(4) of the Fair Work Act 2009 (the Act).
Any change to the guaranteed minimum hours may only be by written consent of the part-time employee and the agreement to work additional hours may be withdrawn by a part-time employee with 14 days written notice.
Additional ordinary hours to the guaranteed minimum hours may be offered and agreed in line with clause 25 Hours or work and clause 26 Overtime, subject to –
- The employee may not be rostered for work outside of the employee’s agreed availability;
- The employee can refuse to work additional hours when offered on any occasion;
- Additional hours worked in accordance with this clause are not overtime, except that where there is a requirement to work overtime in accordance with clause 26, overtime rates will apply.
New employees who are first employed during the period of the new provisions will become casuals when the new Schedule H ceases operation unless the employer and the employee agree that the employee will continue to be engaged on a part-time basis and reach agreement in writing under clause 12.
Existing part-time employees with a written part-time agreement for a regular pattern of hours is entitled to continue to be rostered in accordance with that agreement, unless replaced by a new written agreement under the new provisions.
Under Schedule H8, employers may, subject to considering the employee’s personal circumstances, request in writing that an employee take annual leave and the employee must not unreasonably refuse the request.
Note – this is similar to rights given to employers who do qualify for payments under the JobKeeper scheme.
The request by the employer may only be made if it is reasonable in all the circumstances.
The employee is not required to take leave unless the employer has advised the employee in writing that the employer consents to a dispute about whether the employer’s request is reasonable in all the circumstances being settled by the Fair Work Commission through arbitration under clause 9.5 Dispute Resolution and s739(4) of the Act.
The minimum requirements are:
- The request has to be made 72 hours before the date the annual leave is to commence;
- The remaining employee annual leave balance must not be less than 2 weeks;
- The period of leave under H8 must start before 4 weeks after the new provisions start to operate;
- The new provisions do not prevent an employer and an employee agreeing to an employee taking annual leave at any time.
- The request to take annual leave under H8 may only be made for reasons relating to the COVID-19 pandemic or Government initiatives to slow the transmission of COVID-19 and to assist the employer to avoid or minimise the loss of employment.
Any dispute regarding the operation of Schedule H may be referred to the Fair Work Commission in accordance with clause 9 – Dispute resolution, of the Award.
Operative Date: On and from 19 May 2010 to 31 July 2020.
Click here for the Fast Food Award Determination.
For access to ER Strategies’ COVID-19 toolkit, including updated information for employers directly and indirectly impacted by COVID-19, free downloads and links to helpful government resources, please click here.
ER Strategies continues to assist clients to navigate these changes to their employment arrangements. Clients of ER Strategies can contact the team during business hours on 1300 55 66 37 for assistance. Non-clients can call us on the same number, or contact us here, to discuss how we can best help your business as we move through these unprecedented times.