COVID-19 Changes to Modern Awards and strategies to manage workforce terms and conditions

Posted by April 22, 2020 | Articles, modern award | No Comments

By Samantha Lyon, Senior Associate 

COVID-19 has dramatically impacted the way we live and work. Businesses all around Australia and the world are having to adapt quickly to remote and flexible working arrangements. In addition to managing the complexities that come with these matters, employers will need to keep abreast of and comply with statutory obligations that are being introduced by authorities and are changing daily.

In the last weeks the Fair Work Commission (FWC) has amended various modern awards by inserting a new Schedule which will operate to manage industry specific workforce issues arising from the Covid-19 pandemic. These changes were made to the awards following applications and consultation with unions and employer associations.

The FWC has also moved on its own initiative to introduce two weeks’ unpaid ‘pandemic leave’ and flexibility to take annual leave at half pay for award covered employees.  The variations will operate until 30 June 2020 and effect certain modern awards. The FWC has prioritised modern awards which cover a high proportion of small business and have not yet made recommendations about   construction awards, maritime sector awards and mining and resource sector awards. Click here for a summary of the decision which contains a list of the 99 varied awards.

It is highly likely that more applications will be made to vary other modern awards to assist employers to navigate the complexities of the COVID-19 pandemic. It is an employer’s responsibility to keep abreast of these changes and comply with award obligations as directed by the FWC.

MDC Legal is assisting businesses to prepare contract variations to account for the modern award changes and prevent contraventions of the awards and the Fair Work Act 2009 (Cth) during the COVID-19 pandemic. Call us on 9288 4000 if you wish to discuss an audit and draft revised contracts to assist you to manage your workforce during this time.

A Snapshot of the Modern Award Variations

The modern awards which now contain detailed temporary COVID-19-driven variations include:

  • Clerks – Private Sector Award 2010 (Clerks Award);
  • Hospitality Industry (General) Award 2010 (Hospitality Award); and
  • Restaurant Industry Award 2010 (Restaurant Award).

The modern award changes were made to retain as many workers as possible, reduce “the regulatory burden on business”, increase flexibility (to better juggle work and home commitments) and treat affected employees fairly during the COVID-19 pandemic. In summary the changes include the ability to:

  • direct employees to undertake alternative duties provided the duties are safe and the employees have the required skills, competence and qualifications;
  • comply with reduced minimum engagement periods for casual and part-time employees;
  • work from home;
  • take annual leave at half pay to double the period of leave;
  • direct employees to take excessive leave;
  • increase the spread of ordinary hours;
  • reduce hours of work; and
  • give less notice to require a close-down.

The FWC made these variations because it was satisfied that they were necessary to achieve the modern awards objective (ss. 134 and 157), including ensuring “a fair and relevant minimum safety net”; “the need to promote flexible modern work practices and the efficient and productive performance of work”; “impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden” and “impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy”.

Click here for a summary of the changes to the Clerks Award.

Click here for a summary of the changes to the Hospitality Award.

Click here for a summary of the changes to the Restaurant Award.

Applications have also been made to insert similar variations into the Legal Services Award 2020 and the Real Estate Industry Award 2010.  The FWC is also in the process of making a determination about pandemic leave for health care workers covered by the following modern awards:

  • Aboriginal Community Controlled Health Services Award 2010;
  • Aged Care Aware 2010;
  • Ambulance and Patience Transport Industry Award 2010;
  • Health Professionals and Support Services Award 2010;
  • Medical Practitioners Award 2010;
  • Nurses Award 2010;
  • Pharmacy Industry Award 2010;
  • Social, Community Home Care and Disability Services Industry Award 2010; and
  • Supported Employment Services Award 2010.

Further assistance for business

MDC Legal have also developed a COVID-19 Advisory Service and Employer Guide to help employers navigate employment relations issues amidst the COVID-19 outbreak. Click here for further information or contact us to discuss how we can be of assistance to your company.