Restaurant Award flexibility during coronavirus
On 31 March 2020, the Fair Work Commission (the Commission) made a determination varying the Restaurant Award.
The determination inserted a temporary new Schedule I from an employee’s first full pay period on or after 31 March 2020. Schedule I added extra flexibility to help employers and employees during the impact of coronavirus.
On 29 June 2020, the Commission made a new determination that extended the operational date of Schedule I in the Restaurant Award until 27 September 2020. Schedule I stopped applying in full after this date. Some parts of Schedule I stopped applying on 30 June 2020 – see below for further information.
Who did it apply to?
Schedule I applied to some employers and employees covered by the Restaurant Award.
From the first full pay period on or after 1 July 2020, Schedule I no longer applied to employees and their employers in the JobKeeper scheme. Instead, these employers could use the temporary Fair Work Act JobKeeper provisions to manage their workforce more flexibly.
Which parts stopped applying after 27 September 2020
The information below outlines the Schedule I provisions that applied between 1 July 2020 and 27 September 2020.
Requirements of a direction under Schedule I
From the first full pay period on or after 1 July 2020, if an employer gave a direction under Schedule I, they had to tell the employee in writing that the employer agreed to the Commission arbitrating any disputes about that direction.
Any direction given under Schedule I stopped applying on the earlier of:
- when the employer withdrew, revoked or replaced the direction, or
- 27 September 2020.
Change in employee duties
While Schedule I applied, an employer could direct their employees to perform any tasks that the employee had the skill and competency for, even if those tasks weren’t in the employee’s usual classification or normal work. The tasks had to be safe and the employee needed to have all the appropriate licences and qualifications to perform the tasks.
When an employee performed duties of a higher classification than their normal classification for less than 2 hours in a day, the employer needed to pay the employee at the higher classification rate for the hours they performed the duties. If the employee performed duties of a higher classification for 2 hours or more in a day, the employer needed to pay them at the higher classification rate for the whole day.
Employees who performed tasks of a classification lower than their usual classification were still paid at their usual pay rate.
Hours of work for full-time and part-time employees
Under Schedule I, employers could reduce their full-time or part-time employees' hours of work so that the employee worked an average of:
- between 22.8 and 38 ordinary hours each week for full-time employees
- between 60% and 100% of their guaranteed hours per week, or over the roster cycle, for part-time employees.
From the first full pay period on or after 1 July 2020 until 27 September 2020, an employer could only reduce a full-time or part-time employee’s hours if:
- the direction was reasonable in all the circumstances
- the direction was in writing
- the employee couldn't be usefully employed for their normal days or hours during the period of the direction because of business changes attributable to:
- the coronavirus pandemic, or
- government initiatives to slow the transmission of coronavirus.
If an employer wanted to reduce a part-time or full-time employee's hours, they had to discuss the changes with the employee, making sure they:
- followed the award’s consultation rules about changes to rosters or hours of work
- provided as much notice as they could.
If an employee was a member of the United Workers Union, their employer also needed to let their union know this change is happening.
Leave entitlements while working reduced hours
An employee who was directed to work less hours still accrued annual leave, personal leave and any other leave based on their ordinary hours before Schedule I started.
If an employee was a member of the United Workers Union, their employer also needed to let their union know this change was happening.
Secondary employment, training or professional development while on reduced hours
From the first full pay period on or after 1 July 2020 until 27 September 2020, if an employee was temporarily directed to work reduced hours, they could request to take up:
- reasonable secondary employment
- training, or
- professional development.
Employers needed to consider these requests, and couldn't unreasonably refuse a request.
Under Schedule I, employers could request an employee take their accrued annual leave in some circumstances.
Employers could only make this request if:
- it was reasonable in all the circumstances
- the reasons for the request were attributable to the coronavirus pandemic or Government initiatives to slow the transmission of coronavirus
- it was necessary to help the employer prevent or minimise the loss of employment
- the request was in writing
- they took into account their employee's personal situation
- the employee would still have at least 2 weeks’ accrued annual leave left after taking the leave.
The employee had to consider the request and couldn't unreasonably refuse it.
The annual leave had to start before 13 September 2020 but could end after that date.
Annual leave at half pay
Under Schedule I, employees could also agree with their employer to take their annual leave at half pay, and double their time off work.
This meant that an employee got payment for 1 week of annual leave (including annual leave loading if it applied) for every 2 weeks of annual leave they took.
An employee on leave at half pay accumulated annual leave and sick and carer’s leave as if they were on leave at full pay.
Employees covered by an agreement
The changes to the Restaurant Award didn’t apply to employees covered by an enterprise agreement.
Schedule I provisions that stopped applying after 30 June 2020
The information below outlines the Schedule I provisions that applied between 31 March 2020 and 30 June 2020.
Between 24 March 2020 and 30 June 2020, employers could direct an employee to take annual leave under Schedule I by:
- giving their employees at least 24 hours notice
- considering their employee's personal situation.
Close down of business
Between 31 March and 30 June 2020, if a business was closing down for a period, employers could direct their employees to take annual leave under Schedule I by giving them at least 1 week’s notice (or any shorter period of notice that was agreed).
If an employee didn’t have enough paid annual leave to cover the whole period, the employer could direct them to take unpaid leave for the remainder of the close down. The period of unpaid leave counted as service for entitlements under the:
- Restaurant Award
- National Employment Standards.
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