Temporary flexibility in the Clerks Award extended

The Fair Work Commission has extended and changed Schedule I in the Clerks Award. Schedule I provides award flexibility to help manage the impact of coronavirus and has been extended until 30 September 2020. (see previous update 31 March 2020)

“The extension of a longer span of working hours for people in administrative and clerical roles by the Fair Work Commission today is temporary, but nonetheless is disappointing given the total lack of evidence that these arrangements are any longer required.

“We did win important concessions for workers including reducing the scope and impact of the variations. These include protections for part time and casual workers, a reduction in the span of work hours and the right for workers to vote against the continuation of reduced take home pay.

“Where workers would like to cease these arrangements we’re urging them to speak to us to arrange a ballot in their workplace.

“Given there are only 24 employers who have taken these provisions on with a total 352 workers out of a 1.6 million workforce, we’re in a position to support all workers to remove these provisions and are prepared to go workplace to workplace to do so if necessary.

“In addition, arbitration is now reinstated for any disputes – another positive.

“Notwithstanding these improvements, these arrangements remain unnecessary and redundant. They were primarily about helping parents juggle home schooling with work, but school has since returned.

“The flexibility employers need is already provided through Jobkeeper and changes to the Fair Work Act made after the Clerks Award variations were agreed. Their desire to extend these arrangements is about attacking the fabric of our industrial relations system, not about COVID-19.

“It is also worth highlighting that not one employer has sought to use the variations to the Clerks Award since 11 May which shows just how redundant these provisions are.

“Workers who are affected by this decision are urged to contact their union to ensure their rights are not abused by unscrupulous employers seeking to use the COVID pandemic as a cover to attack workers’ rights.”

Robert Potter, ASU National Secretary

What is Schedule I?

Schedule I is a temporary schedule in the Clerks Award that provides extra award flexibility during the impact of coronavirus. The Schedule provides flexibility in relation to:

full-time and part-time employees’ hours of work
annual leave.

The Schedule was added to the award on 28 March 2020 and was initially due to stop operating on 30 June 2020.

The updated Schedule I applies from 1 July 2020 until 30 September 2020 and includes changes:

adding conditions around giving employees directions under Schedule I
removing the ability to direct employees to perform different duties
removing the reduced minimum engagement/pay periods for casual and part-time employees
adding extra safeguards around requests to take annual leave
removing the close down provisions.

Extended parts of Schedule I that apply until 30 September 2020

Requirements of a direction under Schedule I

From the first full pay period on or after 1 July 2020, any direction or request given by an employer under Schedule I:

has to be in writing
has to say that the employer agrees to the Commission arbitrating any disputes about the direction
can’t be unreasonable in all of the circumstances.

Span of hours changes while working at home

Employees who have agreed with their employer to work from home can also agree to change their span of hours to allow them to work between:

6am and 10pm, Monday to Friday
7am and 12.30pm, Saturday.

To change the span of hours of work for individual employees working from home, employers don’t need to agree with a majority of their employees.

Under Schedule I, some employers can temporarily reduce full-time and part-time employees’ ordinary hours of work for a specified period.

From the first full pay period on or after 1 July 2020, employers can only use these reduction in hours provisions if they’d already used them before 30 June 2020. Other employers need to follow the normal rules about hours of work in the Clerks Award. See Hours of work, breaks & rosters for more information.

Employers who have already temporarily reduced their employees’ hours under Schedule I can continue to temporarily reduce their permanent employees’ hours of work to:

not less than 75% of their full-time ordinary hours, or
not less than 75% of their agreed part-time hours immediately prior to any reduction.

This can be for the whole business or a section of the business.

If an employer wants to further reduce their employees’ hours, the employees will need to vote in favour of it. At least 75% of the full-time and part-time employees in the business or section of the business have to approve the temporary reduction.

The employer needs to follow these steps for the vote to be valid:

If any employee is a known member of the Australian Services Union (ASU) or another organisation, let the ASU or the organisation know about the vote.
Provide the employees with the contact details for the ASU, if they wish to contact the ASU for advice.
Email clerksaward@fwc.gov.au about the vote and provide the employees’ work email addresses. The Commission will email the employees the ASU COVID-19 Information Sheet.
Hold a vote at least 24 hours after they have followed steps 1-3.

If an employee’s hours were temporarily reduced under Schedule I before 1 July 2020, the employees can ask their employer for another vote to confirm that their hours will continue to be reduced for a longer period. This vote has to happen within 7 days of an employee asking for it. If the vote doesn’t happen, or the result of the vote doesn’t support an ongoing reduction in hours, the reduced hours will no longer apply from 7 days after the employee asked the employer to conduct the vote.

Any employee who has had their hours reduced can ask their employer for permission to:

find more work with another employer
engage in training, professional development and study leave.

An employer can’t unreasonably refuse an employee’s request to engage in other reasonable work. An employer has to consider all reasonable requests for training, professional development or study leave.

Employees working reduced hours under Schedule I will continue to accumulate their paid leave and termination of employment entitlements based on their ordinary hours of work before the Schedule started.

An employer and employee can also individually agree in writing (including in an electronic form) to reduce the employee’s hours.

Annual leave

Employers can request an employee to take annual leave under Schedule I in some circumstances.

Employers can only make this request if:

the reasons for the request are attributable to the coronavirus pandemic or Government initiatives to slow the transmission of coronavirus
it is to help the employer to prevent or minimise loss of employment
the request is in writing
they take into account the employee’s personal situation
the employee will still have at least 2 weeks’ accrued annual leave left after taking the leave

they make the request at least 72 hours before they want the employee’s annual leave to start.

The employee has to consider the request and can’t unreasonably refuse it.

The annual leave has to start before 30 September 2020 but can end after that date.

Employees and employers can still agree for an employee to take annual leave at any time.

Annual leave at half pay

Employees can also agree with their employer to take up to twice as much annual leave at a proportionately reduced rate.

For example, this means that if an employee agrees with their employer to take annual leave at half pay, the employee gets payment for 1 week of annual leave (including annual leave loading if it applies) for 2 weeks of annual leave.

An employee on leave at half pay accumulates annual leave and sick and carer’s leave as if they were on leave at full pay.