In response to the numerous applications from unions and employer associations seeking additional flexibility for employers and employees to vary working arrangements to deal with the challenging, unpredictable and continually evolving circumstances surrounding the COVID-19 pandemic, the Fair Work Commission (FWC) has given employers a range of new temporary measures.
To date, the FWC has made determinations to vary certain modern awards, including the:
On 28 March 2020, the Full Bench of the FWC varied the Clerks Award by inserting a new temporary 'Schedule I' (applying from 28 March 2020 until 30 June 2020, unless extended on application to the FWC).
Schedule I gives employers with employees covered by the Clerks Award additional temporary powers to:
On 8 April 2020, the FWC varied 99 modern awards (including the Clerks Award and the other awards listed above) by inserting a new temporary 'Schedule X' (applying from 8 April 2020 until 30 June 2020, unless extended on application to the FWC).
Schedule X introduces new temporary measures to allow employers with employees covered by the relevant modern awards to:
We expect to see more businesses and industries making applications to the FWC to vary other modern awards, including those that have been affected by the reduction in household spending.
Employers considering applying to the FWC to vary an existing enterprise agreement will need to have the majority of their employees approve the variation.
For any variation to be approved by the FWC it will usually need to pass the 'Better Off Overall Test'.
Applications to vary enterprise agreements are being expedited by the FWC to provide employers with additional flexibility to address the significant impacts of COVID-19.
The JobKeeper scheme provides eligible businesses (that elect to participate in the scheme) access to a subsidy payment of $1,500 per fortnight per eligible employee (employed as at 1 March 2020, including those who are stood down or re-hired) to help employers keep their employees in their jobs.
The scheme operates for a temporary period from 30 March 2020 to 27 September 2020.
Under the scheme, employers must pass on the full subsidy (that is, a minimum of $1,500 per fortnight) to eligible employees. This means those employees who earn below $1,500 a fortnight will receive a windfall, but employers must ensure that they continue to meet their contractual obligations including any contractual employee entitlements are not covered by the JobKeeper subsidy.
The Government is also proposing to introduce amendments to FW Act to provide employers with additional powers for a temporary period of time to vary staff working arrangements to deal with the COVID19 pandemic. These proposed changes will be introduced under two pieces of legislation, the Coronavirus Economic Response Package Omnibus (Measures No. 2) Bill 2020 and the Coronavirus Economic Response Package (Payments and Benefits) Bill 2020. These Bills, if passed, will provide eligible employers with additional powers including to stand down employees, direct employees to undertake alternative duties or to work at an alternative location (e.g. from home), and/or request employees to reduce their hours of work or to take annual leave.
The new modern award provisions and the proposed FW Act amendments are subject to civil penalties if not correctly followed. Our team at Clyde & Co would be pleased to work with your business to navigate these complex rules and find solutions to deal with these unprecedented and challenging times.