In brief - In a departure from the usual adversarial approach to industrial relations, employer groups and unions are combining forces to agree substantive variations to the Hospitality Industry (General) Award 2010 (Hospitality Award), the Clerks-Private Sector Award 2010 (Clerks Award) and the Restaurant Industry Award 2010 (Restaurant Award) aimed at providing greater workforce flexibility capable of responding to the COVID-19 pandemic.

On 24 March 2020, the FWC made the first amendments to a modern award in response to the COVID-19 pandemic, granting an application by the Australian Hotels Association to vary the Hospitality Award. Since then, the FWC has approved further variations to the Clerks Award and, most recently, to the Restaurant Award. In this article we summarise the recent changes and their impact on employers and employees and explore the FWC's proposed changes to a further 103 modern awards in the coming weeks. 

The Hospitality Award

The changes to the Hospitality Award were made following an application by the Australian Hotels Association for the implementation of additional flexibility provisions. The temporary changes which were agreed by the United Workers Union apply from 24 March 2020 and will remain in place until 30 June 2020 and are as follows:

Employee Duties

1. An employer can now direct employees to perform any duties within their skill and competency regardless of their classification under the Award, provided that those activities are safe and the employee is licensed and qualified to perform them.

2. Higher duties payments will apply to employees engaged in duties that carry a higher rate than their ordinary classification. 

Hours of Work

3. Employers can direct full-time employees to work an average of between 22.8 to 38 ordinary hours per week, paid on a pro-rata basis, provided that the employer has consulted with the affected employee.

4. Employers can also direct part-time employees to work an average of between 60% to 100% of their guaranteed (contracted) hours of work per week, again provided that the employer has consulted with the affected employee.

Annual Leave 

5. Employees may now be directed to take annual leave with 24 hours' notice, subject to consideration of the employee's personal circumstances.

6. Employees may agree to take twice the amount of annual leave at half pay. 

Close down

7. The notice period for a enforced close down in operations during which an employer can request that an employee take annual leave, has been reduced to one week notice, or if mutually agreed, a shorter period of notice. If an employee has not accrued sufficient leave to cover part or all of the close down, the employee is to be allowed paid annual leave for the period for which they have accrued sufficient leave and given unpaid leave for the remainder of the close down.

The Clerks Award

In a special weekend sitting on Saturday 28 March 2020, the FWC granted an application by the Australian Chamber of Commerce and Industry (with support from the Australian Services Union) to vary the Clerks Award. The changes take effect from the start of the first full pay period commencing on or after 28 March 2020, will remain in place until 30 June 2020 and include:

Operational Flexibility

1. An employer can now direct employees to perform any duties within their skill and competency regardless of their classification under the Award, provided that those duties are safe and the employee is licensed and qualified to perform them. 

2. Employees will not suffer a loss in pay if directed to perform alternative duties.

Part-time and Casual Employees Working From Home

3. The minimum engagement for part-time and casual employees is reduced from 3 hours to 2 hours. 

Hours of Work

4. Where an employee (other than a shift worker) is working from home, the span of ordinary hours is from 6am to 11pm (previously 7am - 7pm) Monday to Friday and from 7am to 12:30pm Saturday. 

Temporary Reductions in Hours of Work

5. If an employer and at least 75% of the employees in the relevant workplace or section of the workplace agree, the ordinary hours of work for full-time and part-time employees can be reduced;

6. The reduction in ordinary hours must not exceed 75% of the full-time or part-time guaranteed (contracted) hours of the employee;

7. Where a reduction in ordinary hours has occurred, the employer must not unreasonably refuse an employee’s request to engage in secondary employment.

Annual Leave

8. An employer can direct employees to take annual leave with at least 1 weeks' notice, subject to a consideration of the employee's personal circumstances. Where an employee has been directed to take annual leave, the employee must still have 2 weeks' leave accrued after the period of directed leave. 

9. Employers and individual employees may 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 (eg during any close-down). 

Close Down 

10. An employer can request that an employee take annual leave as part of a close down of its operations, given that it provides at least one week’s notice, or if mutually agreed, with a shorter period of notice. As was the case for the Hospitality Award, if an employee has not accrued sufficient leave to cover part or all of the close down, the employee is to be allowed paid annual leave for the period for which they have accrued sufficient leave and given unpaid leave for the remainder of the close down.

Restaurant Award

The most recent Award variation, announced by the FWC on 31 March 2020, is the change to the Restaurant Award. The changes, sought by Restaurant and Catering Industrial, with support from the United Workers Union and Australian Council of Trade Unions is as follows:

Duties

1. Once again, an employer can direct all employees to perform any duties within their skill and competency regardless of their classification under the Award, provided that those activities are safe and the employee is licensed and qualified to perform them. 

2. Higher duties will apply to employees engaged in duties that carry a higher rate than their ordinary classification. 

Hours of Work

3. An employer can direct full-time employees to work an average of between 22.8 to 38 ordinary hours per week, paid on a pro-rata basis, provided that the employer has consulted with the affected employee.

4. An employer can direct part-time employees to work an average of between 60% to 100% of their guaranteed (contracted) hours of work per week, provided that the employer has consulted with the affected employee.

Annual Leave

5. An employer can direct employees to take annual leave with 24 hours' notice, subject to consideration of the employee's personal circumstances.

6. Employees may agree to take twice the amount of annual leave at half pay. 

Close Down

7. An employer can request that an employee take annual leave as part of a close down of its operations, provided the employee is afforded at least one week’s notice, or if mutually agreed, with a shorter period of notice. Leave may be taken as paid leave, unpaid leave or a combination of the two.

Commission Flags Further Modern Award Changes

Following three applications within the space of a week, the FWC has announced its proposal to vary a further 103 modern awards at its own initiative (ie there has not been any applications for further variations made by any stakeholder) to provide for two weeks of unpaid "pandemic leave". The flexibility to take annual leave at half pay and other allowances that would allow greater flexibility in employment arrangements during the pandemic.

In a statement titled “Variation of Awards on the Initiative of the Commission” released on 1 April 2020, the FWC outlined its views on the changes to various modern awards deemed necessary to address the pandemic. If approved, the variations would operate until 30 June 2020.

The matter of the proposed changes is being expedited and interested parties are required to file their submission by Monday 6 April 2020. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.