The Fair Work Commission has made a temporary variation to the Clerks Private Sector Award 2010 (“the Award”). The variation comes into effect from the first full pay period on or after 28 March and remains in place until 30 June 2020.

The changes allow for added flexibility during the coronavirus outbreak and include the following:

Operational flexibility

Employers may direct employees to perform any duties that the employee can perform provided that it is safe, and the person is skilled and qualified to carry out those duties. An employee’s pay must not be reduced if they are asked to perform duties associated with a lower classification.

Part-time and casual employees working from home

Where it has been agreed for a part-time or casual employee to work from home, the minimum shift duration for any such arrangement is two consecutive hours.

Ordinary hours of work for day workers working from home

Where it is agreed that an employee may work from home, the spread of ordinary hours of work for day workers is now 6 AM to 11 PM Monday to Friday (previously 7 AM to 7 PM Monday to Friday) and 7 AM to 12:30 PM on Saturday (no change).

An employee working during this extended spread of hours will remain classified as a day worker and not entitled to receive penalties, loadings or allowances that would ordinarily apply to a shift worker.

Agreed temporary reduction in ordinary hours

Employers and permanent employees (both full-time and part-time) may agree to temporally reduce the ordinary hours of work for a specified period. This may be for the entire workforce or a department or section. For such an agreement to be valid, the following requirements must be met:

  1. The reduction in ordinary hours must not be less than 75% of the employees contracted hours that applied immediately prior to the change.
  2. The agreement must be approved by not less than 75% of the employees affected by the change.
  3. The approval of employees is to be determined by way of a vote. For the vote to be valid, it must not be conducted until at least 24 hours after the following conditions have been met:
    1. if any employees are members of the Australian Services Union (ASU) or another organisation, then the ASU or other organisation must be notified prior to the vote taking place;
    2. prior to the vote, the employer must provide the affected employees with the contact details of the ASU, should they wish to seek advice;
    3. the employer must notify the Fair Work Commission by email (clerksaward@fwc.gov.au) that it proposes to conduct a vote. In that email, the employer must include the email addresses of those employees who will be participating in the vote.

Additionally, where employee hours have been reduced, the employer must not unreasonably refuse an employee request to engage in secondary employment and all reasonable requests from an employee for training, professional development and/or study leave must be considered.

It is important to note that the above-mentioned requirements do not apply in circumstances where an employer has come to an agreement with an individual employee about a temporary reduction in hours or shift from full-time to part-time employment.

Annual leave

Employers and individual employees may agree to take up to twice as much annual leave at a proportionately reduced rate for part or all of any agreed or directed period away from work, including during any closedown period. For example, an employee has 10 days of annual leave accrued and agreement is reached for the employee to take that leave over 20 days at half pay.

Additionally, employers may direct employees to take any annual leave that is accrued, provided that:

  1. the employee’s personal circumstances are considered;
  2. at least one week’s notice is given (unless a shorter period of notice is agreed to with the employee);
  3. such direction does not result in the employee having less than two weeks of accrued annual leave remaining.

Close down

Employers may direct an employee to take annual leave as part of a close down, provided that:

  1. The employer provides at least one week’s notice to the employee (or a shorter period if agreed with the employee);
  2. where the employee has insufficient annual leave to cover the close down period, employee shall be entitled to take unpaid leave for the remainder of the close down period;
  3. any period of unpaid leave taken by the employee will count as service for the purpose of calculating award and NES entitlements.

Employers should be mindful that the following arrangements are operational only until 30 June 2020. Details of the variation can be found by referring to “Schedule I” in the Award.

Please do not hesitate to contact us at any time should you require assistance.   

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