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New Award Flexibility

Under section 157 of the Fair Work Act unions and employer groups made joint application to the Fair Work Commission (FWC) to vary relevant awards to provide flexibility in response to the COVID-19 pandemic. 

It was acknowledged that the variations outlined in the applications require a level of trade-off.  A level of award flexibility:

  • Could allow some businesses to hold off taking steps to dismiss or stand down employees
  • May see employees willing in the current environment to trade off some employee benefits in order to stay in work
  • May provide access to paid leave that is already provisioned for on the balance sheet and could allow some businesses to reduce cash flow burdens and reduce operational activity while maintaining paid employment for employees.

The FWC has announced the decision to extend the temporary Schedule “Award Flexibility During the COVID-19 Pandemic” in a number of modern awards due to the ongoing impact of COVID-19 on workplaces.

This decision will affect the Schedules inserted into the below modern awards:

  • Clerks – Private Sector Award 2010 (MA000002)
  • Vehicle Repair, Services and Retail Award 2020 (MA000089)
  • Real Estate Industry Award (MA000106).

The current status of COVID-19 award flexibility extensions to the aforementioned awards is:

Clerks – Private Sector Award – Extension of temporary award flexibility

The FWC has extended and changed the temporary Schedule I in the Clerks Award.

The updated Schedule I now applies until 30 November 2020. Below is an overview of 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. 

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. 

For further information in relation to the specific elements covered by this extension refer to:
https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/temporary-changes-to-workplace-laws-during-coronavirus/clerks-award-flexibility-during-coronavirus

Vehicle Repair, Services and Retail Services Award – Extension of temporary award flexibility

The FWC has extended parts of Schedule I in the Vehicle Award. The extended provisions of the Schedule now apply until 30 November 2020. 

For further information in relation to the specific elements covered by this extension refer to:
https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/temporary-changes-to-workplace-laws-during-coronavirus/vehicle-award-changes-during-coronavirus

Where the flexibility provisions have ceased to operate to a modern award employers and employees need to use the standard award provisions.  Where this is applicable refer to the relevant modern award provisions – Hours of work; Part-time employees; and Annual leave.

Real Estate Industry Award – Introduction of temporary award flexibility

On 5 August 2020, the FWC made a determination varying the Real Estate Award. The determination inserted a new Schedule I, which applies from an employee’s first full pay period on or after 6 August 2020.

Schedule I adds temporary award flexibility during coronavirus for commission-only arrangements.

Schedule I applies to employers and employees covered by the Real Estate Award. 

Commission-only arrangements

Under Schedule I, if a commission-only employee’s work has been impacted by coronavirus, then new rules apply to the calculation of their Minimum Income Threshold Amount (MITA).

If the annual review of their commission-only arrangement occurs after 6 August 2020, then the calculation can be adjusted to exclude the months of May to October 2020. This applies so long as the employee’s work in those months has been impacted by coronavirus.

When making a MITA calculation, the calculation needs to be adjusted accordingly in proportion to the number of months excluded. If an employee’s review date falls part way through a month between May and October 2020, that month can only be excluded if the review is due after the 14th of that month.

New rules also temporarily apply for employing employees on a commission-only basis. Employees can’t be employed as commission-only from 6 August until 1 November, if they weren’t already employed on that basis on 6 August 2020.

https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/temporary-changes-to-workplace-laws-during-coronavirus/real-estate-award-flexibility-during-coronavirus

The FWC has announced the expiration of the temporary schedule “Award Flexibility During the COVID-19 Pandemic” in the following modern awards:

  • Restaurant Industry Award 2010 (MA000119)
  • Hospitality Industry (General) Award 2010 (MA000009)
  • Educational Services (Schools) General Staff Award (MA000076)
  • Fast Food Award (MA000003).

Restaurant Industry Award 2010 – Expiry of temporary flexibility schedule

Schedule I in the Restaurant Award stopped applying after 27 September 2020.


Hospitality Industry (General) Award 2010 – Expiry of Hospitality Award temporary flexibility schedule

The flexibility provisions in Schedule J in the Hospitality Award ceased to apply after 27 September 2020. 

Educational Services (Schools) General Staff Award – Expiry of temporary flexibility schedule

Schedule J in the Educational Services (Schools) General Staff Award stopped applying from 1 August 2020.

Fast Food Award – Expiry of temporary flexibility schedule

Schedule H in the Fast Food Award stopped applying from 31 July 2020.

Accordingly, employers and employees can no longer use the flexibility provisions in the Schedule for changes to:

  • an employee’s classification and duties
  • full-time and part-time employees’ hours of work
  • requests to take annual leave.

This article has been prepared for information purposes only and is not legal advice. For legal advice regarding your specific circumstances, please contact WR Law directly on (03) 5499 6131 or by email at admin@wrlaw.com.au