Clerks Award - flexibility during coronavirus
On 28 March 2020, the Fair Work Commission (the Commission) made a determination varying the Clerks Award. The determination inserted a temporary new Schedule I to help employers and employees during the coronavirus pandemic. Schedule I applied from an employee’s first full pay period on or after 28 March 2020.
The temporary Schedule I provided flexibility provisions for changes to:
- remote working arrangements
- hours of work for full-time and part-time employees
- requests to take annual leave.
The Commission later extended the operational date and made changes to the Schedule. Some parts of Schedule I stopped applying after 30 June 2020. The rest stopped applying after 30 June 2021. This means that employers and employees can no longer use the flexibility provisions in Schedule I.
Who did it apply to?
Schedule I applied to employers and employees covered by the Clerks Award.
Extended parts of Schedule I that stopped applying after 30 June 2021
The information below outlines the Schedule I provisions that applied until 30 June 2021. This information is historical and no longer applies.
Requirements of a direction under Schedule I
From the first full pay period on or after 22 December 2020, any direction or request given by an employer under Schedule I:
- had to be in writing
- couldn't be unreasonable in all of the circumstances.
An employer who issued a direction, made a request or made an agreement under the provisions of Schedule I consented to the Commission arbitrating any disputes about the direction, request or agreement.
Remote working arrangements
Remote working arrangements applied to an employee working from their home, or any other location that wasn't the premises of the employer.
Spread of ordinary hours changes while working remotely
Employees who had agreed with their employer to work remotely could also agree to change their spread of ordinary hours to allow them to work between:
- 6am and 10pm, Monday to Friday
- 7am and 12.30pm, Saturday.
To change the spread of ordinary hours of work for individual employees working remotely, employers didn't need to agree with a majority of their employees.
Continuous working hours
From the first full pay period on or after 22 December 2020, employees working remotely could agree with their employer to not work their ordinary hours continuously.
Start and finish times for part-time employees working remotely
From the first full pay period on or after 22 December 2020, employers and part-time employees didn't need to agree on their start and finish times when working remotely if they had already agreed:
- that the employee could pick their own start and finish times, or
- to start and finish within a specific range of times.
Non-consecutive hours for part-time employees working remotely
From the first full pay period on or after 22 December 2020, employers didn't need to roster continuous hours for a part-time employee if:
- it had been agreed between the employer and employee that the work didn't need to be undertaken continuously
- the employee was given at least 3 hours work on that shift.
Meal and rest break when working remotely
From the first full pay period on or after 22 December 2020, employees working remotely were entitled to their usual award breaks according to their hours of work.
If the employer agreed, an employee could take any meal or rest break at any time that suited their personal circumstances. For example, an employee working more than 5 hours could take their break after the first 5 hours of work.
If the employer agreed, an employee could alter the pattern of their meal or rest breaks to suit their personal circumstances. For example, an employee who was entitled to a 30 – 60 minute meal break could take 3 breaks of 20 minutes instead.
Hours of work for full-time and part-time employees
Under Schedule I, some employers could 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 could only use these reduction-in-hours provisions if they'd already used them before 30 June 2020. Other employers needed to follow the normal rules about hours of work in the Clerks Award.
Employers who had already temporarily reduced their employees' hours under Schedule I could 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 could be for the whole business or a section of the business.
If an employer wanted to further reduce their employees' hours, the employees would have needed 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 had to approve the temporary reduction.
The employer had to follow these steps for the vote to be valid:
- If any employee was a known member of the Australian Services Union (ASU) or another organisation, let the ASU or the organisation know about the vote.
- Provided the employees with the contact details for the ASU, if they wished to contact the ASU for advice.
- Emailed clerksaward@fwc.gov.au about the vote and provided the employees' work email addresses. The Commission would have then emailed the employees the ASU COVID-19 Information Sheet.
- Held a vote at least 24 hours after they had followed steps 1-3.
If an employee's hours were temporarily reduced under Schedule I before 1 July 2020, the employees could ask their employer for another vote to confirm that their hours would continue to be reduced for a longer period. This vote had to happen within 7 days of an employee asking for it. If the vote didn't happen, or the result of the vote didn't support an ongoing reduction in hours, the reduced hours would have no longer applied from 7 days after the employee asked the employer to conduct the vote.
Any employee who had their hours reduced could ask their employer for permission to:
- find more work with another employer
- engage in training, professional development and study leave.
An employer couldn't unreasonably refuse an employee's request to engage in other reasonable work. An employer had to consider all reasonable requests for training, professional development or study leave.
Employees working reduced hours under Schedule I continued 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 could also individually agree in writing (including in an electronic form) to reduce the employee's hours.
Annual leave
Employers could request an employee to take annual leave under Schedule I in some circumstances.
Employers could only make this request if:
- the reasons for the request were attributable to the coronavirus pandemic or government initiatives to slow the transmission of coronavirus
- it was to help the employer to prevent or minimise loss of employment
- the request was in writing
- they took into account the employee's personal situation
- the employee would still have at least 2 weeks' accumulated annual leave left after taking the leave
- they made the request at least 72 hours before they wanted the employee's annual leave to start.
The employee had to consider the request and couldn't unreasonably refuse it.
The annual leave had to start before 30 June 2021 but could end after that date.
Employees and employers could still agree for an employee to take annual leave at any time.
Annual leave at half pay
Employees could also agree with their employer to take up to twice as much annual leave at a proportionately reduced rate.
For example, this meant that if an employee agreed with their employer to take annual leave at half pay, the employee got payment for 1 week of annual leave (including annual leave loading if it applied) for 2 weeks of annual leave.
An employee on leave at half pay accumulated annual leave and sick and carer's leave as if they were on leave at full pay.
Schedule I provisions that stopped applying after 30 June 2020
The information below outlines the Schedule I provisions that applied between 28 March 2020 and 30 June 2020. This information is historical and no longer applies.
Change in duties
Between 28 March 2020 and 30 June 2020, an employer could direct an employee to do any tasks the employee had the skill and competency for, even if those tasks weren't in their usual classification or normal work.
If an employee was told during this time to work above their usual classification for more than one day, the employer needed to pay them at the higher rate.
Employees who did tasks below their usual classification were entitled to be paid at their usual pay rate.
There are ongoing requirements in the award about paying employees who work higher duties. You can use our Pay and Conditions Tool to find out minimum rates of pay and allowances, or check the Clerks Award for details.
Minimum engagement/pay for part-time and casual employees working from home
Between 28 March 2020 and 30 June 2020, part-time employees who agreed with their employer to work from home could have their minimum engagement reduced from 3 hours per shift to 2 hours per shift.
During this time, casual employees who agreed with their employer to work from home were also entitled to a minimum of 2 hours' pay per shift (rather than 3 hours).
Annual leave and close down of business
Between 28 March 2020 and 30 June 2020, employers could direct an employee to take annual leave under Schedule I by giving the employee at least 1 week of notice (or any shorter period of notice that was agreed).
During this time, if the annual leave direction was because the business was closing down for a period, the employer could direct an employee take unpaid leave. The employer could only do this if the employee didn't have enough paid annual leave to cover the whole period.
Any period of unpaid leave taken by an employee counted as service for entitlements under the:
Employees covered by an agreement
The changes to the Clerks Award didn’t apply to employees covered by an enterprise agreement.
Find out if your workplace is covered by an agreement on the Fair Work Commission website - Find an agreement.
More information
For further information on the changes, read the Fair Work Commission's:
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