Fair Work Commission Varied 99 Modern Awards - 9th April 2020
This provides an entitlement to unpaid ‘pandemic leave’ and the flexibility to take twice as much annual leave at half pay.
In simple terms, an employee is now entitled to take up to two weeks’ unpaid leave if they are required, by government or medical authorities or acting on the advice of a medical practitioner, to self-isolate and is consequently prevented from working, or is otherwise prevented from working by measures taken by the government or medical authorities in response to the COVID-19 pandemic.
Australian Business Lawyers had previously advised in their COVID-19 FAQs
, employees in this situation are not entitled to personal leave under the National Employment Standards as they are not ill or injured.
The FWC understood and accepted this but wanted to ensure that employees could access unpaid leave in this situation as of right rather than simply leave it to the employer's discretion.
This new provision should cause little concern as it reflects what employers have been doing to date and now formalises the process for accessing unpaid leave which we anticipate will largely concern self-isolation.
Some important things to note are:
- The grant of leave is up to two weeks and as such may be shorter.
- The leave must commence before 30 June 2020.
- An employer can request evidence that would satisfy a reasonable person that the leave is taken for a reason given in the clause.
- An employer may agree to give an employee more unpaid pandemic leave but is not required to.
Separately the awards were also varied to allow an employee to take double annual leave at half pay. This arrangement was put into a limited number of modern awards last week
Note these amendments will affect, the following awards we have on scope:
Fair work Commission Statement - 1st April 2020
- General Retail Industry Award 2010
- Timber Industry Award 2010
- Clerks - Private Sector Awards 2010
Proposed new pandemic leave
On 1 April 2020, the Fair Work Commission (the Commission) issued a Statement outlining its intention to update 103 awards during the coronavirus pandemic. The proposed updates would provide:
- an entitlement to unpaid pandemic leave
- flexibility to take annual leave at half pay.
The proposed variations would operate until 30 June 2020. The list of the awards the Commission proposes to vary is in paragraph  of the Statement .
Interested persons can respond to the Commission’s provisional views by lodging a written submission by 4pm on Monday 6 April 2020. If opposing submissions are received, the Commission will hold a hearing on Wednesday 8 April 2020.
If no opposing submissions are received, the Commission won’t hold a hearing and will finalise the matter.
We will monitor these developments and provide more information as soon as possible. Please check our website regularly.
Timber Industry Award
Thursday, 26 March 2020 -
Over the past week, the Fair Work Commission (the Commission) has issued several decisions varying multiple Awards, emanating from the 4-year modern award review process. This includes a variation to the Timber Industry Award below is the variation.
Timber Industry Award 2010
These changes come into effect from the first full pay period on or after 1 May 2020.
To view the determination click here
To view the decision click here
Modern Retail Award
No current updates
Clerks Private Sector Award
Thursday, 26 March 2020:
Today, employer and union groups have made an urgent consent application to the Fair Work Commission that will make temporary amendments to the Clerks - Private Sector Award 2010 in response to the crisis facing Australian business in the wake of the COVID-19 pandemic.
These amendments are due to a commendable and unprecedented level of cooperation between the Australian Chamber of Commerce and Industry (ACCI), Ai Group, the Australian Council of Trade Unions and Australian Services Union (with ACCI represented by Australian Business Lawyers & Advisors throughout the process).
The key amendments to the Award, which will be included in a schedule attached to the Award, are outlined below:
Date and Operation
The amendments will operate until 30 June 2020, unless extended.
This amendment allows employees to be directed to perform all duties that are within the employees skill and competency (even if they are lesser duties) regardless of their classification provided the duties are safe and the employee is qualified to perform them, without the reduction of pay.
Working from Home
These amendments have been broken down to address part-time and casual employees under working from home arrangements:
Spread of hours:
Where an employee requests to work from home, and the employer agrees, the spread of hours has been expanded to 6am-11pm Monday-Friday and 7am-12.30pm on Saturday.
Are required to be rostered for a minimum of two hours working from home and become entitled to overtime rates worked in excess of 38 hours per week, or an average of 38 hours per week on a roster system.
May be engaged for a newly reduced minimum of two hours work when working from home.
Agreed temporary reduction in hours by a majority in the workplace
This allows full-time and part-time employees in a workplace, or part of a workplace, to agree to temporarily
reduce ordinary hours for a specified period for the whole workplace or relevant part of it, by a 75% majority vote by employees. The employees must vote on whether to reduce hours or not and if there is a union involved in the workplace, they must be informed. Additionally, the FWC must be notified of the vote pursuant to the process outlined in the Schedule to the Award.
The reduction in working hours is limited to a 25% reduction or less.
For example, An employee who is employed for five days per week can have their days of work reduced to four days per week pursuant to this clause. For a part-time employee working four days per week, they could have their days reduced to three days per week.
To illustrate the 'part of a workplace', if you have separate arms of your business, for example, office staff vs call centre staff, the employees can vote to reduce hours in office section but not the call centre section.
Where hours are reduced, the employee’s ordinary hourly rate will stay the same. The employee will still continue to accrue entitlements at their ordinary hours of work prior to the agreement to reduce hours.
The amendment does not prevent an employer and an individual employee agreeing to reduce hours or to have an employee move temporarily from full-time to part-time hours of work, with the corresponding reduction in the weekly wage.
Employers and employees may agree to the taking of up to twice as much annual leave at a proportionately reduced rate, including during any close-down.
An employer may direct an employee to take any accrued annual leave, by giving at least one week’s notice, or any shorter period as agreed. A direction to take annual leave shall not result in an employee having less than two weeks of accrued annual leave remaining.
Where an employee is required to take annual leave during a close-down of operations or part of its operations, the employer must give at least one week’s notice.
During a close-down, an employee can take all of their annual leave and then will be given leave without pay for the remainder of the shutdown.
Any close-down of operations must not extend beyond 30 June 2020. However, these amendments to the Award do not impact upon the operation of section 524 of the Fair Work Act 2009 where an employee stands down employees for reasons beyond the control of the employer where there is a stoppage of work.
These are temporary amendments to the Clerks - Private Sector Award 2010 in response to the crisis facing Australian business in the wake of the COVID-19 pandemic. If you have any questions about how this will impact your business, please call the workplace relations team.
Transport & Logistics Award
No current updates
Commercial Sales Award
No current updates