On Saturday 28 March, a FWC Full Bench approved a variation to the Clerks Private Sector Award 2010 to provide flexibilities for employers and employees dealing with the impacts of the COVID-19 pandemic.

The variation inserts a schedule into the award with special conditions that will operate until 30 June 2020. The special conditions incorporated into the award are intended to assist businesses and their employees through the COVID-19 crisis.

The special conditions included in the Clerks Award provide:

• Flexibility around the range of duties that employees can perform;
• Flexibility around minimum shift and working hours for employees working from home;
• Temporary reductions in working hours in a workplace or section of a workplace where agreed by 75% of employees concerned (employers must also give consideration to secondary employment and personal development sought by employees);
• The capacity to take longer periods of leave at proportionally reduced rates of pay; and
• The capacity for employers to close down operations while employees are on leave, or direct employees to take leave having regard to their personal circumstances.

Despite the temporary changes to the award, employees will continue to accrue their entitlements on the usual basis if their working hours are reduced, with any periods of unpaid leave taken during a close down to count as service.

The award variation now provides AREEA members with head office staff and other clerical roles that fall under the Clerks Award access to greater flexibilities and options for responding to COVID-19 related operational and employment matters.

The special conditions were agreed between the Australian Chamber of Commerce and Industry (of which AREEA is an association member), Australian Industry Group, the Australian Services Union and the Australian Council of Trade Unions to support employers and employees during this ongoing health crisis.

The FWC said in a statement that what is necessary to achieve the modern award objective in a particular case involves judgement giving consideration to the context and circumstances. The Full Bench was satisfied that the variation proposed was necessary to achieve the modern awards objective taking into account the considerations in s.134 of the Fair Work Act.

The FWC in its determination noted that the provisions of the inserted Schedule are aimed at preserving the ongoing viability of businesses and preserving jobs during the COVID-19 pandemic and not to set any precedent in relation to award entitlements after its expiry date.

The application to vary the Clerks Award followed a similarly successful application between the Australian Hotels Association and the United Workers Union to insert a schedule in the Hospitality Industry (General) Award that will also expire in three months unless otherwise extended. The schedule also provides flexibilities around minimum working hours, annual leave and operational duties.

The joint application followed the Prime Minister announcing new restrictions on indoor gatherings which resulted in substantial closures of restaurants, bars, cafes and various hospitality venues across the country in a bid to stop the spread of COVID-19.

Both award variation applications were expedited by the FWC to help parties respond to the rapidly changing COVID-19 situation, with the full bench handing down its decision on the Clerks Award variation on Saturday.

A number of industry groups, including AREEA, are working to consider what other modern awards could be varied to provide more flexibility in the award system so businesses can remain viable and employers have the ability to keep more people at work during this crisis.

Restaurant and Catering Industrial is the latest employer group seeking a variation to the Restaurant Industry Award lodging an application yesterday with consent of trade unions. The FWC expedited the application, with the hearing provisionally listed for Wednesday 31 March.

AREEA members with any feedback or advice on potential temporary changes to key awards, such as the Mining Industry Award and the Hydrocarbons (Upstream) Industry Award, to assist employers and employees through the COVID-19 pandemic, should contact [email protected].