COVID-19 Update for employers: three changes you may have missed

With things changing so rapidly, you may have missed some recent temporary amendments to legislation and modern awards that have been introduced to provide greater flexibility to employers (and employees) during this time. 

These changes have come into effect in the last week and impact on the taking of long service leave in New South Wales, the Clerks-Private Sector Award 2010 and the Hospitality Industry (General) Award 2010.

1. Changes to the Long Service Leave Act 1955 (NSW)

On 25 March 2020, the Treasury Legislation Amendment (COVID-19) Act 2020 (NSW) (Act) commenced. The Act amended the Long Service Leave Act 1955 (NSW) temporarily. 

The temporary changes provide for an employer and an employee to agree:

  • to less than one month’s notice of when long service leave is to be given and taken; and
  • to taking leave in advance in smaller blocks, such as one or two days a week (ordinarily the period has to be at least a one month).

These arrangements will be available until at least 25 September 2020, but potentially up to 25 March 2021.

2. Changes to the Clerks – Private Sector Award 2010 

On 28 March 2020, the Fair Work Commission varied the Clerks – Private Sector Award 2020 (Clerks Award) in response to the COVID-19 epidemic to provide greater flexibility to employers who have employees covered by the Clerks Award. The variations do not apply in relation to a particular employee until the start of the employee’s first full pay period on or after 28 March 2020.

The key points of the variations are as follows:

      Classification and duties

  • Employers can direct employees to perform reasonable duties outside their usual classification.
  • The duties must be safe and within an employee’s skill and competency. The employee must also be licensed and qualified to perform them. 
  • An employer cannot reduce the employee’s pay if they are directed to perform alternate duties.

      Working from home

  • An employer can roster a part-time employee who is working from home by agreement with the employer, for a minimum of 2 consecutive hours on any shift.
  • An employer can pay a casual employee who is working from home by agreement with the employer, a minimum payment of 2 hours’ work at the appropriate rate.
  • For employees working from home by agreement with the employer where an employee requests and the employer agrees, the spread of ordinary hours of work for day workers is between 6.00 am and 11.00 pm, Monday to Friday, and between 7.00 am and 12.30 pm on Saturday. Day workers will not be shiftworkers for the purposes of any penalties, loadings or allowances.

      Hours of work

  • Employers and full-time and part-time employees may agree to temporarily reduce ordinary hours of work for the employees in the workplace or section of the workplace for a specified period. 
  • At least 75% of full-time and part-time employees in the workplace (or section of the workplace) must approve any agreement. Approval must be obtained by way of a vote. The voting process has a number of requirements that must be met.
  • The reduction in hours must not be less than 75% of the employee’s usual hours.
  • The employee’s ordinary hourly rate will be maintained but the weekly wage will be reduced by the proportion of reduced hours.
  • Leave will continue to accrue and be taken based on an employee’s usual hours. 
  • Employers and individual employees can still agree in writing to reduce the employee’s hours or to move the employee temporarily from full-time to part-time hours of work, with a commensurate reduction in the minimum weekly wage (this does not require the approval process above).

      Annual leave 

  • Employers can direct employees to take annual leave 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. This includes a close-down.
  • A direction to take annual leave must not result in an employee having less than 2 weeks of accrued annual leave remaining. 
  • An employer  and an employee may also agree that the employee takes twice as much annual leave at half rate of pay for all or part of the directed or agreed period away from work, including during any close down.
  • Where an employee has not accrued sufficient leave to cover part or all of a close-down, the employee is allowed paid annual leave for the period for which they have accrued sufficient leave and unpaid leave for the remainder of the close-down. 

These arrangements will be in place until 30 June 2020 and can be extended upon application.

Please see the full determination here.

3. Changes to the Hospitality Industry (General) Award 2010 

On 24 March 2020, the Fair Work Commission varied the Hospitality Industry (General) Award 2010 (HIGA) in response to the COVID-19 epidemic to provide greater flexibility to employers with employees covered by the HIGA. The variations do not apply in relation to a particular employee until the start of the employee’s first full pay period on or after 24 March 2020.

The variations are as follows:

      Classification and duties

  • Employers can direct employees to perform reasonable duties outside their usual classification.
  • The duties must be safe and within an employee’s skill and competency. The employee must be licensed and qualified to perform them. 
  • Where an employee performs higher duties, they will need to be paid accordingly.

      Hours of work

  • Employers can direct full-time and part-time employees to work less hours and be paid on a pro-rata basis. 
  • The reduction in hours must not be less than 60% of the employee’s usual hours.
  • Leave will continue to accrue and be taken based on an employee’s usual hours. 
  • Employers need to consult with the affected employees about the changes to rosters or hours of work and provide as much notice as practicable.
  • If the affected employee/s are members of the United Workers Union (UWU), the employer must notify the UWU of its intention to implement these arrangements.

      Annual leave 

  • Employers can direct employees to take annual leave with 24 hours’ notice. 
  • The changes do not affect the ability of the employer and employee to agree to the employee taking annual leave with a shorter notice period. 
  • Employers and employees may also agree that the employee takes twice as much annual leave at half rate of pay for all or part of the leave.

These arrangements will be in place until 30 June 2020 and can be extended upon application.

Please see the full determination here.

When considering these temporary changes, employers should also consider any restrictions in employment contracts. If an employment contract is more restrictive than the applicable award, the employer may not be able to amend the employee’s terms and conditions without the employee’s consent.

If you would like to discuss the implications for your business please contact our Employment + Workplace Relations Partner, Erin Lynch.

Erin Lynch, Partner
M +61 477 330 202
E erin.lynch@vincentyoung.com.au