The COVID-19 pandemic and the restrictions implemented by both Federal and State Governments to combat the pandemic have had a substantial impact on businesses and their employees.
In addition to the recent expedited changes to the Hospitality Industry (General) Award 2010, Clerks – Private Sector Award 2010 and the Restaurant Industry Award 2010, the Fair Work Commission (FWC) is taking further action to help employers address the impact of the pandemic on their businesses.
Varying an Enterprise Agreement
While employers are still required to take many of the same steps as previously required to vary an enterprise agreement (EA), the FWC has announced that during the COVID-19 pandemic it:
- will expedite any applications to vary an EA sent to COVID19Applications@fwc.gov.au;
- may consider waiving the requirement for an application to be accompanied by a properly witnessed statutory declaration;
- may consider approving an EA that does not pass the better off overall test (BOOT) if it is satisfied exceptional circumstances exist. For example, if the variation of the EA is “part of a reasonable strategy to deal with a short-term crisis in, and to assist in the revival of, the enterprise of an employer covered by the agreement.”
Some terms employers may consider varying during the COVID-19 pandemic include those dealing with:
- hours of work, including the spread of hours and minimum hours of work;
- pay increases;
- leave, including flexibility around an employer’s ability to direct employees to take leave.
Varying Modern Awards
On 1 April 2020, the FWC announced a proposal to vary a further 103 Modern Awards to insert a new “Schedule X – Additional measures during the COVID-19 pandemic” under section 157 of the Fair Work Act 2009 (Cth).
The proposed changes include:
- The introduction of two weeks’ unpaid “pandemic leave”. The entitlement is intended for employees who are required to self-isolate but who are not entitled to take paid leave.
- The flexibility to allow an employer and an employee to agree to the employee taking twice the amount of annual leave at half pay.
If adopted, the variations will operate until at least 30 June 2020.
The FWC anticipates that the variation of the selected Modern Awards will occur in phases. Modern Awards that come within the first phase will include those which cover industries most impacted, such as accommodation and food services.
The full bench (presided by President Iain Ross, Vice Presidents Adam Hatcher and Joseph Catanzariti, Deputy Presidents Ingrid Asbury and Richard Clancy, and Commissioner Paula Spencer) has asked any party wishing to respond to the proposal to file submissions by 4:00pm on 6 April 2020.
In the event that a submission is received opposing the FWC’s provisional views, the matter will proceed to a hearing by telephone at 2:00pm on Wednesday 8 April 2020.
If you would like advice or assistance with these issues, please contact a member of our Workplace Relations team.
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