Paul Ronfeldt Lauren Townsend

FWC amends Clerks Award to enable clerical employees to work more flexibly during coronavirus outbreak

Paul Ronfeldt Lauren Townsend

31 March 2020

Award Conditions Employment Contracts Employment Policies

On 28 March 2019, the Fair Work Commission (FWC) granted an application to vary the Clerks – Private Sector Award 2010 (Clerks Award). The variation inserted a new Schedule 1 to the Clerks Award, which will expire on 30 June 2020, unless extended.  As noted in the FWC’s Determination, the variations ‘are aimed at preserving the ongoing viability of businesses and preserving jobs during the COVID-19 pandemic’.

This is just one of the latest steps taken by employer groups, unions and the Government to help protect jobs during the pandemic.

The key temporary changes to the Clerks Award are outlined below.

Who will be affected by the changes? 

The changes apply only to clerical employees whose employment is covered by the Clerks Award.  

It is important to note that not all clerical employees are covered by the Clerks Award. Many clerical employees are covered instead by industry awards, which operate to the exclusion of the Clerks Award. Further, these changes generally do not apply to employees whose employment is covered by an enterprise agreement.  

Nevertheless, this variation is significant because the Clerks Award applies across more workplaces in Australia than any other award.

Changes in duties

To facilitate the redeployment of staff, the changes allow an employer to direct an employee to undertake alternative duties, provided that the duties are: 

  1. within the employee’s skill and competency; and
  2. safe, and the employee is licensed and qualified to perform them. 

An employer cannot reduce an employee’s pay as a result of directing employees to perform alternative duties. Indeed, employees may be entitled to a higher duties allowance if the duties they are directed to perform fall within a higher classification for more than one day. 

Changes to working hours

Employees and employers can now agree to an employee working at home, and to an employee arranging their hours of work any time between 6.00am to 11.00pm, Monday to Friday, and between 7:00am and 12:30pm on Saturday, without those hours attracting overtime or shift penalties.

The changes also allow part-time and casual employees to work from home for a minimum of two consecutive hours on any shift. Previously, the minimum number of consecutive hours that a part-time employee could be directed to work was three. 

Employers can already agree with their employees to reduce working hours on a case by case basis by employment contract variation. The changes attempt to introduce an additional means of reducing hours by providing that an employer may hold a vote to determine whether (or not) more than 75% of all full-time and part-time employees would support a reduction in hours.  Whilst an employee’s ordinary hourly rate (under the Clerks Award) cannot be reduced, the employee’s weekly wage will be reduced in proportion with the reduction in ordinary hours.

Despite any reduction in hours, employees must continue to accrue leave entitlements based on their original ordinary hours of work, and if their employment is terminated their termination entitlements must be paid in accordance with their original employment arrangements.

It is unclear whether employers will opt for a vote, given that it must be conducted with the involvement of the FWC and, in some cases, the Australian Services Union. 

Annual leave arrangements

An individual employee and an employer may agree to the employee taking 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, including during a close-down period, or while an employee is stood-down from employment.

In addition, an employer may now direct an employee to take accrued annual leave, subject to considering the employee’s personal circumstances, provided that the employee retains at least two weeks of accrued annual leave and the employer gives the employee at least one week’s notice of the requirement to commence annual leave, unless an employee agrees to a shorter period of notice.

Close downs

The changes have introduced a new arrangement for close-downs.  A close-down can be for an indefinite duration, up to the expiry of the new Schedule 1 (currently 30 June 2020). 

During a close down an employer may direct an employee to take annual leave. If an employee’s accrued annual leave is exhausted during the period, the employee can be required to remain on unpaid leave.  

This close down under the Clerks Award is different from a stand down under section 524 of the Fair Work Act 2009 (Cth). In many cases, it may be more appropriate to rely upon the close down provision than the statutory shut down provision, particularly where there is not yet a complete stoppage of work causing a lack of useful work for clerical employees to perform (meaning the pre-requisite requirements for a stand down are not met). 

A number of additional, similar applications to vary modern awards are likely over the course of the next few weeks.  For example, on 30 March 2020, Restaurant & Catering Industrial applied to the FWC (supported by the United Workers’ Union and the ACTU) to temporarily vary the Restaurant Industry Award 2010.  On 25 March 2020, the Hospitality Industry (General) Award 2010 was temporarily varied for similar reasons on joint application by the Australian Hotels Association and the United Workers’ Union.

Employers need to continue to monitor changes to the awards that apply to their employees, particularly during this volatile period.

Please contact a member of our Employment, Workplace Relations and Safety Team if you would like our assistance or require further information.

Paul Ronfeldt | Partner | +61 3 9020 5757 | pronfeldt@tglaw.com.au

Lauren Townsend | Special Counsel | +61 3 8080 3773 | ltownsend@tglaw.com.au