Are your casual employees really casual?

The Covid-19 flexibility provisions have been temporarily extended by the Fair Work Commission (FWC) in some of the modern awards. The flexibility schedule includes the Vehicle Repair, Services and Retail Award and Clerks – Private Sector Award, which are until 30 November 2020. ​

Covid-19 Flexibility Provisions – Clerks Private Sector Award 2020Under The Flexibility Schedule, employers can direct employees to reduce their hours. An employer can use this provision if the employer previously used this provision before 30 June 2020. 

Temporary reduction in permanent employees’ hours of work can not be:

• less than 75% of their ordinary full-time hours; or
• less than 75% of their agreed part-time hours immediately before any reduction.

75% of the full time or part-time employees in the business should be in favour of this reduction for the employer to be able to implement it. 

Process for EmployersThe employer should follow these steps for the reduction in hours vote to be valid:

• If an employee is a known member of the Australian Services Union (ASU) or any another organisation, the employer needs to inform the ASU or the organisation about the vote;
• The employer should provide the ASU contact details to the employees so they can contact the ASU for advice;
• The employer must email clerksaward@fwc.gov.au with details about the vote, including the employees’ email addresses. The FWC will email the employees’ the ASU COVID-19 Information sheet;
• The vote should take place at least 24 hours after the steps listed above have been taken.

If the hours were temporarily reduced under Schedule 1 before 1 July 2020, employees could ask the employer for another vote. The vote needs to take place within seven days of the employee requesting it. Reduced hours no longer apply from the seven days after the employees’ request if:

• The vote does not take place
• The result of the vote does not support the reduced hours 

Any employee with reduced work hours can ask their employer (who cannot unreasonably refuse the request) for permission to:

• find extra work with an additional employer;
• engage in training, professional development, and study leave.

Reduction of hours can also be individually agreed between the employer and the employee. This must follow the following guidelines: 

• The agreement must be in writing;
• The agreement should state that the employer agrees that the FWC arbitrates any disputes arising from this direction;
• can’t be unreasonable in all of the circumstances.

Employees will continue to accrue all paid leave and termination entitlements based on their original ordinary hours of work before the commencement of the flexibility schedule. 

Taking Annual LeaveIn certain circumstances, an employer can request that an employee take annual leave. This request must follow the following guidelines:

• the request is in writing;
• it aims at preventing or minimising loss of employment;
• the reasons for the request relates to the coronavirus pandemic or Government initiatives to slow the transmission of coronavirus;
• It takes into account the employee’s situation;
• the employee will have at least two weeks’ accrued annual leave left after taking the required leave;
• the employer requests this at least 72 hours before they want the employee’s annual leave to start.

An employee cannot unreasonably refuse the request. The annual leave must start before 30 November but can end post that date. Employees can also take the leave at half-pay, giving them twice as much leave. At half-pay, the employee continues to accrue leave at the rate of full pay.

Working from home Employees who are working from home can agree with the employer to change their work times. These times can range from: 

• 6 am & 10 pm, Monday to Friday;
• 7 am & 12.30 pm, Saturday.

This request can be made individually with the employer and do not have to be by agreement with the majority of the employees. 
Covid-19 Flexibility Provisions – Vehicle Repair, Services and Retail Award 2020Under the Covid-19 Flexibility Provisions Temporary extension, similar conditions to the ones mentioned above apply to the Vehicle Award. Any direction made under this flexibility schedule will end on 30 November 2020 unless withdrawn or replaced by the employer prior. 

Hours of workReduction in hours can only occur if the employee cannot be usefully employed under their regular work hours because of changes relating to:

• Coronavirus; or
• Initiatives by the Government to slow the spread of coronavirus.

These flexibility provisions can only be used if they had already been used before 30 June 2020. 

Full-time employeesFull-time employees working hours can be reduced between an average of 22.8 and 38 ordinary hours. The below employees cannot have their hours reduced below a minimum amount of fortnightly pay:

• Employees classified between levels 1 – 5 cannot have their hours reduced, so they earn less than $1,115.70 a fortnight (excluding allowances) 
• Employees classified between level 1 or 2 under the Vehicle Industry Tradespersons Award cannot have their hours reduced, so they earn less than $1,500.00 a fortnight (excluding allowances).

Part-time EmployeesEmployees working hours can be reduced down to an average of between 75% and 100% of their usual hours per week. Part-time employees cannot have their hours reduced, so they earn less than $836.78 a fortnight (excluding allowances).

Reducing employee’s working hoursThe employer needs to consult with the employee if a reduction in hours needs to take place. The following needs to be followed:

• Changes to rosters or hours of work must follow the Vehicle Award’s consultation rules;
• The employer must provide as much notice as possible.

Employees will continue to accrue entitlements and/or take leave based on their ordinary hours of work before the reduction in hours. For employees who are made redundant while working reduced hours, the employer will calculate their redundancy pay on their hours before the reduction.

Unpaid Pandemic Leave and Annual Leave FlexibilityAccess to unpaid pandemic leave and annual leave at half pay has been extended till 29 March 2021 under the Covid-19 Flexibility Provisions.

Get in touchInterpreting the award and the Flexibility Provisions can be a challenge. Getting the right advice from the get-go can help you mitigate these risks.

The information contained in this blog is general in nature. If you are unsure about how this applies to you, feel free to contact us at VeiraMal Consulting. Our HR consultants will be happy to guide you through this.