COVID-19: Modern awards and recent changes you should know

In response to the declaration of COVID-19 as a pandemic and subsequent state government mandated shut-downs, the Fair Work Commission approved various amendments to a number of modern awards. In this article, we summarise the most widely applicable variation, being pandemic leave, before exploring more specific amendments to the Hospitality Industry (General) Award 2010, the Restaurant Industry Award 2010, and finally, the Clerks – Private Sector Award 2010.

The intent of the amendments is to provide greater workforce flexibility in the face of substantial changes to industries as a result of COVID-19.

Interestingly, these amendments appeared to have been largely supported by both business and employee groups, including unions, marking a welcome change from usual adversarial approach that accompanies Modern Award amendments.

Pandemic Leave

On 8 April 2020, the Fair Work Commission varied 99 modern awards (there are 122 in total) to include two weeks of unpaid pandemic leave (or more by agreement between the employer and employee), if the employee is prevented from working:

• as a result if being required to self-isolate by government or medical authorities, or acting on the advice of a medical practitioner; or

• by measures taken by government or medical authorities in response to the pandemic (for example, an enforceable government direction restricting non-essential business).

Importantly, pandemic leave is available in full immediately to full-time, part-time and casual employees. In other words, employees do not need to accrue it and it is not pro-rated for employees who do not work full-time.

In addition, employees do not have to use all their accrued paid leave before accessing pandemic leave.

Finally, employees need to commence their pandemic leave before 30 June 2020, but can finish it after that date.

Hospitality Industry (General) Award 2010

The amendments to the Hospitality Industry (General) Award 2010 commenced in late March 2020 and were approved following an application to the Fair Work Commission by the Australian Hotels Association. The amendments are temporary and will remain in place until 30 June 2020.[1]

In summary, the amendments are as follows:

Employee Duties

An employer may direct employees to perform any duties within their skill and competency levels, regardless of the employee’s usual classification under the Modern Award, provided that those additional duties are safe and the employee is qualified to perform them.

In the event an employee is directed to perform duties that carry a higher rate of pay than the employee’s ordinary classification, the employer must pay the employee the higher applicable rate.

Hours of Work

Employers can now direct full-time employees to work an average of between 22.8 to 38 ordinary hours per week (with employees to be paid on a pro-rata basis). However, the employer must first consult the affected employee, prior to implementing such a change.

With respect to part-time employees, employers can now direct that they work an average of between 60% to 100% of their guaranteed (i.e. as per their contract of employment) hours of work per week. As with full-time employees, the employer must first consult with affected part-time employees.

Annual Leave

Employers can now direct employees to take annual leave with 24 hours’ notice, subject to the employee’s personal circumstances.

In addition, employees can now take twice the amount of annual leave at half pay. 

Close Down

The notice period for an enforced close down in operations, during which an employer can request that an employee take annual leave, has been reduced to one weeks’ notice, or shorter (if mutually agreed). If the employee does not have enough accrued annual leave to cover the close down period, the employee may take unpaid leave.

Restaurant Industry Award 2010

These amendments have also been largely incorporated into the Restaurant Industry Award 2010.[2] As with the Hospitality Industry (General) Award 2010, variations to the Restaurant Industry Award 2010 are temporary and will remain in place until 30 June 2020.

Clerks – Private Sector Award 2010

Amendments to the Clerks – Private Sector Award 2010 were approved in late March 2020 following an application by the Australian Chamber of Commerce and Industry, with support from the Australian Services Union. Amendments to this Modern Award are temporary and will remain in place until 30 June 2020. [3]

In summary, the amendments are as follows:

Employee Duties

An employer may direct employees to perform any duties within their skill and competency levels, regardless of the employee’s usual classification under the Modern Award, provided that those duties are safe and the employee is qualified to perform them. Employees must not suffer a loss in pay if directed to perform alternative duties.

In addition, the minimum period of engagement for part-time and casual employees is reduced from three hours to two hours.

Hours of Work

Where an employee is working from home, the period in which ordinary hours of work may be performed is now 6:00 am through to 11:00 pm, Monday to Friday (it was previously 7:00 am through to 7:00 pm) and 7:00 am through to 12:30 pm on Saturday.

Reductions in Hours of Work

Subject to the approval of 75% of employees in the workplace (or a defined section/department of the workplace), the employer can reduce the ordinary hours of work for full-time and part-time employees. However, the reduction in ordinary hours must not exceed 75% of the full-time or part-time (i.e. as per their contract) hours.

Where a reduction in hours has been implemented, the employer cannot unreasonably refuse an employee’s request to take up alternative/secondary employment.

Annual Leave

Employers can now direct employees to take annual leave with one weeks’ notice, subject to the employee’s personal circumstances. Employees must have two weeks annual leave remaining following a period of directed leave.

Employers and employees can also 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 (e.g. during any shut-down).

Close Down

An employer may require an employee to take annual leave by giving at least one week’s notice as part of a close down of its operations (previously four weeks), or any shorter period of notice that may be agree

If the employee does not have enough accrued annual leave, the employee may take unpaid leave.

Are further alterations possible?

In short, yes.

In response to the large number of applications seeking variations to modern awards, the Fair Work Commission recently announced its intent to vary modern awards at its own initiative.

How can DSA Law help?

If you have an employment law enquiry, please Contact Us or one of the Employment Lawyers at DSA Law on (03) 8595 9580 so we can assist you.

For more information regarding COVID-19 and employment law, read our articles:

• Can employers stand down employees during the Coronavirus (COVID-19) outbreak?
• How does the Coronavirus (COVID-19) affect employees’ leave entitlements?
• Is my Worker, an Employee or an Independent Contractor?
• Do my employees need a written employment agreement?

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[1] For a complete version of the Hospitality Industry (General) Modern Award 2010.

[2] For a complete version of the Restaurant Industry Award 2010.

[3] For a complete version of the Clerks – Private Sector Award 2010.