COVID-19: Amendments to Hospitality and Clerks Awards, and Long Service Leave Act
COVID-19: Amendments to Hospitality and Clerks Awards, and Long Service Leave Act
Monday 30 March 2020 / by Lee Pike and Ellie Jongma posted in Workplace Relations COVID-19

Following on from Holman Webb's recent article COVID-19 and the Workplace, the past week has seen a number of unprecedented and immediate changes in the Workplace Relations space, all of which have the potential to affect both your business and employees.

With a nationwide lockdown likely, and social distancing and working from home instantly becoming the new norms for many Australian workers, it is unsurprising that we're seeing amendments to the legislation and Industrial Instruments governing employment, aimed at increasing flexibility.

The Hospitality Award

Last week, the Fair Work Commission ('FWC') published a decision relating to an urgent joint application filed by the Australian Hotels Association and the United Workers Union. The application sought to vary the Hospitality Industry (General) Award 2010 ('the Award') enabling it to deal directly with the consequences of the Government's recent decisions relating to COVID-19. In particular, these variations mean restrictions on pubs, clubs (excluding bottle shops) and hotels (excluding accommodation) from opening from midday on 23 March 2020.

These restrictions will undoubtedly have significant and ongoing impacts on these businesses and their employees. The Commission accepted that:

"The hospitality sector is a significant component of the economy...and the variations sought by the parties would have a positive impact on 'the sustainability, performance and competitiveness of the national economy".

In summary, the changes to the Hospitality Industry (General) Award 2010 are:

  • Flexibility regarding Award classifications: employees may be directed to perform duties outside the scope of their classification subject to:
    • the duties being within their competency;
    • the duties being safe; and
    • the requisite payment being made where the duties are considered 'higher duties' under the Award.
  • Flexibility regarding full-time employees' hours of work: an Employer can direct a full-time employee to work an average of between 22.8 and 38 ordinary hours per week, with payment made on a pro-rata basis;
  • Flexibility regarding part-time employees' hours of work: an Employer can direct a part-time employee to work an average of between 60% and 100% of their guaranteed hours per week, or per roster cycle;
  • The insertion of safeguards: ensuring consultation with employees and their applicable union representatives prior to the implementation of changes under the new temporary provisions;
  • A provision enabling employers to direct employees to take annual leave with 24 hours' notice, subject to consideration of an employee's personal circumstances; and
  • Flexibility regarding the taking of annual leave: employees are allowed to take annual leave at half the rate of pay for twice as long, by agreement with the employer.

These Award variations will be in place (temporarily) until 30 June 2020 with the ability for the provisions to be extended by a further application to the Fair Work Commission.

The Clerks Award

The Australian Chamber of Commerce and Industry, and the Australian Industry Group have made a joint application to the Fair Work Commission seeking temporary amendments be made to the Clerks-Private Sector Award 2010, similar to those amendments implemented in the Hospitality Award, including:

  • Provisions enabling employers and employees to reach an agreement to reduce their hours of work;
  • Enabling employees to change their ordinary hours whilst working from home;
  • Permitting employers to give one weeks' notice of a direction for employees to take their accrued annual leave;
  • Allowing flexibility between classifications so that employees can duties outside the scope of their classification subject to the duties being within their competency;
  • Increasing flexibility in taking leave such as taking leave at half-pay, where there is agreement between employers and employees (similar to the Hospitality Award);
  • Enabling employers to engage casual and part-time employees for shorter two hour shifts; and
  • Allowing employees whose hours are reduced to take on another job or seek to engage in training or additional study.

The Application was heard in an urgent hearing over the weekend before a Full Bench, and soon after the FWC issued a decision accepting the temporary variations to the Clerks Award.

The Bench concluded:

"The measures encompassed in the variation strike an appropriate balance between the provision of additional flexibility and treating affected employees fairly".

The Clerks Award covers around 1.5 million Australian workers, approximately two thirds of which are women. The variations to the Clerks Award are aimed at giving employers every chance to keep their workers employed, and to enable employers to deal with the practical implications of their workforce predominantly working from home.

Long service leave

In further unprecedented action, the NSW Government has passed legislation to provide workers with earlier and more flexible access to their long service leave during the COVID-19 pandemic, with State Parliament passing the Treasury Legislation Amendment (COVID-19) Bill on Tuesday.

The amendments to the Long Service Leave Act 1955 enable long service leave to be taken with less than the current one month's notice, and in blocks of less than one month where there is agreement between an employer and the requesting employee.

The change to the long service leave provisions is aimed at giving businesses additional options and keep employees in on-going employment during these circumstances.

Initially, the amendments will be in place for six months, however should circumstances required, the changes can be implemented for up to 12 months and will cease at the end of the COVID-19 pandemic.

If you have a query with respect to the above information, or you would like to speak with a member of Holman Webb's Workplace Relations team in relation to your own individual situation, please don't hesitate to get in touch today.

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