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Industrial Relations in the time of COVID-19
We discuss below various amendments to Australia's employment law framework in response to COVID-19.
Pandemic leave and amendments to 103 modern awards
On 8 April 2020, the Fair Work Commission varied 103 modern awards to include a new "Schedule X – Additional measures during the COVID-19 pandemic".
The amendments introduce an entitlement to two weeks of unpaid pandemic leave for employees under those awards who are exposed to COVID-19 and required to stay away from the workplace.
The amendments also reflect the changes already introduced to the Clerks – Private Sector Award 2010 by allowing employees to take twice their accrued annual leave but be paid only 50% of their normal weekly wage.
Unless they are extended, the provisions of Schedule X will operate from 8 April 2020 until 30 June 2020. The Commission indicated that it will continue to monitor this evolving situation and may introduce further changes if needed.
Temporary changes to Clerks – Private Sector Award 2010
On Saturday 28 March 2020, the Fair Work Commission approved an application made by the Australian Chamber of Commerce and Industry and the Australian Industry Group to amend the Clerks – Private Sector Award 2010 to provide greater flexibility to employers subject to the Award and assist their response to COVID-19.
The application was made with the support of the Australian Services Union and the Minister for Industrial Relations, Christian Porter, and follows the introduction of similar changes to the Restaurant Industry Award 2010 and the Hospitality Industry (General) Award 2010. The changes to these awards were introduced prior to the introduction of Schedule X discussed above and are broader in their scope.
The following measures will operate from 28 March 2020 until 30 June 2020, unless extended by further application:
Operational flexibility: an employer may direct an employee to perform any duties that are within the employee's skill and competency regardless of the employee's classification under the Award, provided that the duties are safe and that the employee is licensed and qualified to perform them.
Part-time employees working from home: an employer is required to roster a part-time employee who is working from home for a minimum of 2 consecutive hours on any shift, rather than 3 consecutive hours, which is otherwise required under clause 11.5 of the Award.
Casual employees working from home: an employer must pay a casual employee who is working from home a minimum payment of 2 hours' work, rather than 3 hours, which is otherwise required under clause 12.4 of the Award.
Ordinary hours of work for employees working from home: employees may by agreement spread their hours between 6am and 11pm Monday to Friday and between 7am and 12.30pm on Saturday, which is a significant extension of the ordinary spread of hours under clause 25 of the Award.
Agreed temporary reduction in ordinary hours: an employer and at least 75% of the relevant full-time and part-time employees may agree to temporarily reduce ordinary hours of work for the employees as follows:
full-time employees: to not fewer than 75% of the full-time ordinary hours, which is equal to 28.5 ordinary hours;
part-time employees: to not fewer than 75% of the part-time employees' ordinary hours immediately prior to the implementation of the temporary reduction in ordinary hours;
Note: this facilitative provision does not prevent employees and employers from otherwise agreeing to reduce the hours or pay of employees. The Schedule also sets out a procedure that must be followed in order for the agreement to be valid.
Annual leave: employees may by agreement 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. Employers are also empowered to direct employees to take accrued annual leave by giving at least one week's notice to an employee, provided that, after the leave is taken, the employee will have at least 2 weeks of accrued annual leave remaining.
Close-down: employers may require employees to take annual leave as part of a close-down of all or part of their operations by giving at least one week's notice to affected employees. Where an employee has not accrued sufficient leave, that employee must take unpaid leave for the remainder of the close-down. The period of unpaid leave will count as service for the purposes of the Award and the National Employment Standards.
Schedule I of the Award can be viewed on the Fair Work Commission website.
Fast-tracking of Enterprise Bargaining Agreement variations
The Fair Work Commission has published a fact sheet outlining mechanisms available to employers to vary EBAs in response to the impact of COVID-19.
These measures streamline the process of varying an EBA.
The fact sheet is available on the Fair Work Commission website.
Most of Australia has heard of the Australian Government's JobKeeper Scheme which involves the payment of $1,500 per fortnight per employee to eligible businesses. For more detail, we encourage you to consider the Fact Sheet available on the Treasury website.
In support of the JobKeeper scheme, the Federal Parliament has also introduced amendments to the Fair Work Act 2009 through the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020.
Subject to obligations to consult and act reasonably, the amendments to the Fair Work Act 2009 allow employers to give three different forms of JobKeeper enabling directions to employees:
a JobKeeper stand down direction – reducing the days and hours of work of employees;
a duties direction – directing employees to perform other duties within their skill and competence;
a location direction – directing employees to perform duties at a different work location, including an employee's home.
Although these measures grant increased flexibility to employers, they are subject to procedural requirements that must be met in order for any action to be lawful.
Please contact Richard Pegg (firstname.lastname@example.org) if you require assistance in relation to any industrial relations issue in the time of COVID-19.
How we can support and assist you during the current COVID-19 crisis
The outbreak of COVID-19 and the measures imposed by Governments around the world to contain it are having unprecedented impacts on all sectors of society. We do not need to elaborate on that - enough has been said by others.
Our priorities are the needs and wellbeing of both our clients and our staff. We know that many of you are dealing with pressures and issues that were not envisaged even a few short weeks ago.
We have taken steps, so far as possible, to continue to provide our full range of services. We will let you know if that changes as a consequence of the current environment and public health advice.
We are ready to support and assist you with regard to particular legal issues arising from COVID-19, including the following:
advising employers in relation to work health and safety, absenteeism, leave, flexible work arrangements, stand down and redundancy;
advising employees in relation to the commencement and termination of employment and their right to request flexible work arrangements and take leave;
reviewing and advising on contracts and contractual obligations that have been affected by COVID-19, including termination, frustration and force majeure;
business restructuring and asset acquisition or disposal;
advising lessors and lessees in relation to their rights under their leases, including in relation to the payment of rent and termination;
dispute resolution in increasingly high pressure circumstances;
privacy and cybersecurity with employees increasingly working remotely;
wills, power of attorney, enduring guardianship and estate planning; and
the "emerging legislation" in response to COVID-19.
Please let us know if there is any way in which we can support you. You can contact us in the usual manner by email and telephone or by using our enquiry form link. In addition, as we are mindful of the restrictions on socialcontact and the possible adverse implications of travel, we are able to meet with you in video conferences.
In the meantime we hope you will remain safe and well as you deal with the challenges of the present climate.
We have recently welcomed a number of new professionals/colleagues to the firm who were previously at Emil Ford Lawyers.
Garry Pritchard is an accredited property specialist, and also advises on Elder Law including Wills, estates and retirement villages.
Fred Chilton is a senior corporate and commercial lawyer specialising in negotiated M&A transactions, especially acting for vendors. He also advises on all aspects of technology and communications, intellectual property and international trade.
Nigel Russell advises on property transactions, Wills and estates. He is a leading notary.
Joseph O’Mara is a commercial and workplace relations lawyer who also advises in relation to charities and not-for-profits.
We are delighted that they have joined us and are appreciating their contribution to the life of the firm.