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Amendments to COVID-19 Flexibility Provisions in the Clerks Award

The Fair Work Commission has issued a determination to further extend the COVID-19 flexibility schedule within the Clerks – Private Sector Award 2020 [MA000002], and to make a number of changes to the “Working from Home” provisions contained within this schedule. These changes took effect from 22 December 2020.

The temporary COVID-19 provisions within Schedule I have been extended until the 30 June 2021.

Furthermore, the determination also included the removal of the current clause I.2.1 “Ordinary hours of work for employees working from home” and replaced this with more extensive provisions under “Remote Working Arrangements”. We explain the new provisions for Remote Working Arrangements in further detail below.

Definition of “Remote Work” The determination removed the reference in clause I.2.1 to “Working from Home” and extended the provisions of this clause to apply to any employee undertaking “Remote Work”. This is defined as work undertaken by an employee from their home or any other location of their choosing that is not the premises of their employer.

Extended spread of ordinary hours for Remote Work The previous provisions of clause I.2.1 which included the ability for an employer and employee to agree to alternative ordinary hours of work when engaged to work from home, have not been altered under the amended clause. These provisions, however, have been altered to reference employees engaged in Remote Work under the extended definition. As per the previous amendment, employees engaged on Remote Work can agree with their employer to work ordinary hours between:

  • 6:00 am & 10:00 pm, Monday to Friday;

  • 7:00 am & 12.30 pm, Saturday.

Ability for employees to elect not to work ordinary hours continuously An employee and employer can now agree for ordinary hours of work to not be worked continuously when an employee is working remotely as defined above.

Flexible start and finish times for part-time employees A significant change to clause I.2.1 under the temporary COVID-19 provisions, is that an employer and a part-time employee are not required to reach an agreement as to the shift start and finish times on days where the employee is engaged on Remote Work. This applies as long as both parties have agreed:

  • That the employee may choose their start and finish times on Remote Work days; or

  • Have agreed to start and finish within a specific range of times.

It is important for employers to keep in mind that these start and finish times must still be within the spread of Ordinary Hours to avoid the payment of overtime.

Ability for part-time employees to work non-consecutive hours Part-Time employees undertaking Remote Work, may agree with their employers that Ordinary Hours of Work will not be required to be worked continuously. However, employers must ensure Part-Time employees under this agreement are still rostered for a minimum of 3 Hours on that shift.

Arrangements for taking breaks while undertaking Remote Work The amended “Remote Work Arrangements” under clause I.2.1, also include more flexibility regarding the taking of breaks while an employee is engaged on Remote Work. Provided that it is agreed with the employer, an employee may take their meal or rest breaks prescribed under Clause 15 of the Clerks Award:

  • At any time that suits their personal circumstances. This means an employee working more than 5 hours can elect to take their meal break at anytime during their shift, including after the first 5 hours of work.

  • In an alternative configuration of break times to suit their personal circumstances. This means an employee entitled to a 30 to 60 minute can elect to take this in 3 breaks of 20 minutes duration, rather than a single consecutive 60 minute period.

It is important for employers to be aware that an overall requirement of any agreements made under the COVID-19 Flexibility Provisions within the Clerks Award, including any agreements regarding the new Remote Work Arrangements, must be in writing.

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