The Fair Work Commission has approved changes to the Restaurant Industry Award 2010 to provide greater flexibility in working arrangements during the COVID-19 pandemic.

These changes provide relief from some of the more restrictive provisions of the award with respect to hours of work and annual leave for the period from 31 March 2020 to 30 June 2020. The objectives are to help businesses through this difficult period and to maintain jobs.

The key changes are:

1. An employee’s full-time or part-time hours can be adjusted at the direction of the employer to between 60% and 100% of their normal ordinary working hours over the course of a week or over the course of a roster cycle (eg for a full-time employee, that is anywhere from 22.8 to 38 ordinary hours per week)
2. Before making that direction, the employer must consult employees in line with award provisions on consultation related to changes in hours of work and, if the employee is a member of United Voice, consult United Voice as the employee’s representative union.
3. An employer and an employee may agree to the employee taking twice as much annual leave at half the rate of pay for all or part of any period of annual leave.
4. an employer may, subject to considering an employees’ personal circumstances, direct the employee to take annual leave with 24 hours’ notice.

While any arrangement under this clause is operating, an employee continues to accrue entitlements (paid leave and termination entitlements) on the basis of their pre-existing employment contract and normal hours of work. An employee would also be entitled to a payment for any public holiday that they would have been entitled to under their pre-existing employment arrangement.

See Schedule I at the very end of the Award

COVID-19 Changes to the Clerks Award

The Fair Work Commission has approved changes to the Clerks – Private Sector Award 2010 to provide greater flexibility in working arrangements during the COVID-19 pandemic.

These changes provide relief from some of the more restrictive provisions of the award with respect to hours of work and annual leave for the period from 28 March 2020 to 30 June 2020. The objectives are to help businesses through this difficult period and to maintain jobs.

The key changes are:

1. The minimum daily engagement for a part-time or casual employee is reduced from 3 hours to 2 hours
2. The span of hours within which employees can work ordinary hours when they are working from home by agreement with the employer has been increased to between 6.00 am and 11.00 pm (in lieu of 7.00 am to 7.00 pm) on Monday to Friday and remains from 7.00 am to 12.30 pm Saturday. This means that no penalty payments or shift loadings apply to ordinary hours worked outside the normal span of hours (between 6.00 am and 7.00 am and between 7.00 pm and 11.00 pm on Monday to Friday).
3. Hours of work for a group of employees can be reduced by agreement to no less than 75% of normal hours with approval of at least 75% of the affected employees via a vote and following consultation with employees and, where applicable, their union representatives. The employer is required to provide the work email addresses of the employees who will be participating in the vote, to the Commission. The Commission will then distribute the ASU COVID-19 Information Sheet to the employees prior to the vote. The Commission shall list the name of the business on a register which will be accessible to the ASU, upon request, for the period when these COVID-19 arrangements are in operation. The employer is also required to provide employees with contact details for the ASU.
4. 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, including any close-down.
5. An employer may direct an employee to take any annual leave that has accrued, subject to considering the employee’s personal circumstances, by giving at least one week’s notice, or any shorter period of notice that may be agreed. A direction to take annual leave shall not result in an employee having less than 2 weeks of accrued annual leave remaining.
6. An employer may require an employee to take annual leave as part of a close-down of its operations by giving at least one week’s notice, or part of its operations, or any shorter period of notice that may be agreed.

While any arrangement under this clause is operating, an employee continues to accrue entitlements (paid leave and termination entitlements) on the basis of their pre-existing employment contract and normal hours of work. An employee would also be entitled to a payment for any public holiday that they would have been entitled to under their pre-existing employment arrangement.

There are some other qualifiers and conditions in the provisions so you should look at the full clause – see link below.

See Schedule I at the (very end of the) Award

We have been getting quite a few questions about the rules around business shutdowns and employee absences associated with the terrible bushfires which have ravaged so much of the country. These range from those who sadly have lost property and/or have had to evacuate so the business just stops to those in other areas who have downstream effects of toxic smoke in the air. There are also those brave people who have volunteered to fight the fires and perform other emergency duties at the personal expense of their paid jobs. Voluntary Emergency Service Leave Community service leave is one of the National Employment Standards that apply to most of us. That includes voluntary emergency service leave. All employees including casual employees who are engaged in voluntary emergency activity with a recognised emergency management body like the SES, CFA or RSPCA are entitled to leave without pay. If you are able to pay your employee for that period, that is fantastic but we know that most small businesses would struggle with that. The period of leave is not limited other than that it should be no longer than the period that they are engaged in that emergency management activity with allowance for reasonable travel and rest. More information is available at https://www.fairwork.gov.au/leave/community-service-leave. Business interruption and employee stand down The Fair Work Act provides for certain situations where an employee may be stood down without pay due to circumstances beyond the employer’s control. These include severe and inclement weather or natural disasters (such as bushfires) which force a business interruption or closure. That is fairly clearcut for those businesses in areas directly impacted by fires who have had to close at least temporarily. It is however important to check any employment contract or enterprise agreement or modern award to see if any alternative provisions apply. For example, the Building and Construction General On-site Award 2010 has an inclement weather clause that affords employees an entitlement to up to 32 hours pay in a period of 4 weeks where business operations are disrupted by inclement weather. See Clause 23 at https://www.fwc.gov.au/documents/documents/modern_awards/award/ma000020/default.htm It might also be that businesses which are not located in the areas directly impacted by fires are also affected either because they delivered products or services into or out of those directly impacted areas or because they are suffering other effects such as poor air quality from smoke in their areas of operation. The stand down provisions could also apply to them. In any of these scenarios, if you are able to provide people with alternative work within their capabilities, that would be great. However, we know that for many that just isn’t possible. Other leave entitlements Employees might make requests to use annual leave or long service leave entitlements during the stand down period and, if that is something that you as an affected employer can accommodate, that is great. Unfortunately, for many employers, the loss of cash-flow and the uncertainty about the business future will make that extremely difficult if not impossible. If that is your situation, ensure that you at least know what support is available for your employees and direct them to where they can access that support (and ensure that you access it too). Personal/Carer’s Leave can apply in a few contexts:

• An employee who suffers injury or illness as a result of the fires may be incapacitated for work eg an employee injured during a bushfire, or who is unwell and unable to work due to smoke inhalation, may be entitled to sick leave.
• An employee can take paid carer’s leave to care for or support a member of their immediate family or household who is sick, injured or has an unexpected emergency. For example, an employee may be able to take carer’s leave to care for their child if their child’s school closes unexpectedly due to a bushfire emergency.

Sadly, there are also situations where Compassionate Leave comes into play – when a member of an employee’s immediate family or household dies or has a life threatening illness or injury. That entitlement is to two days of paid leave for full-time or part-time employees (unpaid for casuals). What else can you do? We know that people go through enormous trauma and stress in these disaster situations which gives rise to anxiety and depression and a host of other mental health issues. We also know that disasters like these lead to heightened levels of suicide and domestic violence. As much as you can, try to keep in touch with your people and support them emotionally – just having a boss who cares can make a world of difference to their wellbeing and resilience in tough times….and make sure that you and your family have the supports that you need to. The Fair Work Ombudsman has a “Bushfires across Australia” webpage which has a lot of useful stuff on it (and some content has been drawn from there) – see https://www.fairwork.gov.au/about-us/news-and-media-releases/website-news/bushfires-across-australia#pay-during-stand-down PS Thank you to all of the civil contractors for your outstanding support for the fire fighting effort. We have been servicing the HR needs of civil contractors through our partnership with the the Civil Contractors Federation in Victoria for the past 14 years. Each time that there is a major fire emergency, CCF members are there to help protect Victorians. You are awesome! If you need some help with people issues associated with the fires (whether your business is affected or you are fighting them), give us a call for free – use your membership and call Peter Maguire on 0438 533 311.   [/av_textblock]