DETERMINATION

Fair Work Act 2009
s.157—FWC may vary etc. modern awards if necessary to achieve modern awards objective

Australian Industry Group, The; Australian Chamber of Commerce and Industry
(AM2020/30)

CLERKS—PRIVATE SECTOR AWARD 2020
[MA000002]

Section 157(3) of the Fair Work Act 2009 (Cth) – additional measures during COVID-19 pandemic – Schedule X—Additional measures during the COVID-19 pandemic – period of operation expires on 30 June 2020 – Clerks—Private Sector Award 2020 – variation of Schedule I.

A. Further to the decision issued in transcript by the Full Bench on 30 June 2020, the above award is varied as follows:

1. By deleting the words “until 30 June 2020” in clause I.1.1 in Schedule I—Award Flexibility During the COVID-19 Pandemic and inserting the words “until 30 September 2020”.

2. By inserting a new clause I.1.2 in Schedule I—Award Flexibility During the COVID-19 Pandemic as follows:

I.1.2 Any direction or request given by an employer under Schedule I must be given in writing and does not apply to the employee if the direction is unreasonable in all of the circumstances.

3. By inserting a new clause I.1.3 in Schedule I—Award Flexibility During the COVID-19 Pandemic as follows:

I.1.3 Any direction or request given by an employer under Schedule I or any agreement made pursuant to clause I.2.1, from 1 July 2020, is not valid unless the employee is advised in writing that the employer consents to a dispute about the direction, request or agreement being settled by the Fair Work Commission through arbitration in accordance with clause 40.5— Dispute Resolution and section 739(4) of the Act.

4. By deleting clauses I.2.1—Operational flexibility, clause I.2.2—Part-time employees working from home and clause I.2.3—Casual employees working from home in Schedule I—Award Flexibility During the COVID-19 Pandemic.

5. By renumbering clause I.2.4—Ordinary hours of work for employees working from home as clause I.2.1 in Schedule I—Award Flexibility During the COVID-19 Pandemic.

6. By deleting the word “11.00 pm” in clause I.2.1(a) and replacing it with the word “10.00 pm” in Schedule I—Award Flexibility During the COVID-19 Pandemic.

7. By deleting the cross reference “I.2.5(e)” appearing in clause I.2.1(c) and inserting “I.2.1(a)” in Schedule I—Award Flexibility During the COVID-19 Pandemic.

8. By renumbering clause I.2.5—Agreed temporary reduction in ordinary hours as clause I.2.2 in Schedule I—Award Flexibility During the COVID-19 Pandemic.

9. By inserting new clauses I.2.2(i) to (k) in Schedule I—Award Flexibility During the COVID-19 Pandemic as follows:

(i) This clause only applies to employers who implemented a temporary reduction in ordinary hours under Schedule I in this Award before 30 June 2020.

(j) Any employee who has had their hours of work reduced pursuant to this Schedule I prior to 1 July 2020 may request an employer to conduct a further vote to confirm the ongoing reduction in hours pursuant to this Schedule I. Such a vote must be held within 7 days of any request. The vote must comply with the requirements in clause I.2.2(h).

(k) If any vote requested under clause I.2.2(j) does not approve of the ongoing reduction of hours or is not held within 7 days of the making of the request, the operation of clause I.2.2 with respect to the relevant employees will cease to be effective 7 days from the date when the request was made.

10. By deleting clause I.2.6—Annual leave in Schedule I—Award Flexibility During the COVID-19 Pandemic and inserting a new clause I.2.3 as follows:

I.2.3 Annual leave

(a) Subject to clause I.2.3(f) and despite clauses 32.6, 32.7 and 32.8 (Annual leave), an employer may, subject to considering an employee’s personal circumstances, request an employee to take paid annual leave, provided that the request does not result in the employee retaining a balance of less than 2 weeks annual leave after the leave is taken. Such a request must be made a minimum of 72 hours before the date on which the annual leave is to commence.

(b) An employee must consider and may not unreasonably refuse a request to take annual leave made pursuant to clause I.2.3.

(c) Clauses I.2.3(a) and (b) do not prevent an employer and an employee agreeing to the employee taking annual leave at any time.

(d) Employers and individual employees may agree to take up to twice as much annual leave at a proportionately reduced rate for all or part of any agreed or directed period away from work, including any close-down.

(e) The period of annual leave must commence before 30 September 2020 but may end after this date.

(f) An employer can only request that an employee take annual leave pursuant to this clause if the request is made for reasons attributable to the COVID-19 pandemic or Government initiatives to slow the transmission of COVID-19 and to assist the employer to avoid or minimise the loss of employment.

11. By deleting clause I.2.7—Close down in in Schedule I—Award Flexibility During the COVID-19 Pandemic.

12. By updating the cross-references accordingly.

B. This determination comes into operation on 1 July 2020. In accordance with s.165(3) of the Fair Work Act 2009 this determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after 1 July 2020.

PRESIDENT

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