We are all now aware of Jobkeeper as a legislative change that came into effect the last couple of months. But what you might not be aware of are the other changes that have been made to Awards and entitlements to deal with the changes that Covid-19 has brought to the workforce and to better support employees and businesses through the new set of challenges.

Furthermore, the Government looks to be taking these ‘unprecedented times’ as an opportunity to reform the Industrial Relations System more broadly.  Here we outline what’s changed and what further changes might be coming down the pipeline.

What’s already changed?

A number of temporary changes to Awards and entitlements are currently in place until 30 June (unless extended):

• Unpaid pandemic leave & annual leave changes – Two temporary new provisions were inserted into 99 awards which provide employees with:
  • 2 weeks of unpaid pandemic leave, if the employee is unable to work because they are required to self isolate (by government, medical authorities and/or medical practitioner advice). The leave needs to start before 30 June 2020, but can finish after that date.
  • the ability to take twice as much annual leave at half their normal pay if their employer agrees.
• Private Clerks Award Changes – one of the common awards is the Private Clerks Award which generally covers administrative roles. At a high level, the temporary changes to this Award include:
  • Minimum engagement/pay for part-time and casual employees working from home – in agreement with their employer, part-time employees can reduce their minimum engagement to reduce from 3 hours per shift to 2 hours per shift. Casual employees who have an agreed arrangement to work from home, must be paid for for a minimum of 2 hours’ work per shift, rather than 3.
  • Span of hours changes while working at home – Employees who have agreed with their employer to work from home can make an agreement with their employer to change their span of hours.
  • Hours of work for full-time and part-time employees – Under the recent JobKeeper changes to the Fair Work Act, qualifying employers can temporarily direct eligible employees to work fewer hours or days (including no hours) in certain circumstances.
  • Annual leave and close down of business. Under Jobkeeper a qualifying employer can:
    • request an eligible employee to take paid annual leave (as long as the employee keeps a balance of at least 2 weeks paid annual leave).
    • agree in writing with the eligible employee for them to take annual leave at half their usual pay (including annual leave loading if it applies) for twice the length of time.

 What’s potentially on the horizon for change?

A ruling that may have flown under your radar over the last month, is the Federal Court ruling on casual entitlements .  In WorkPac Pty Ltd v Rossato [2020], the Federal Court ruled that a Queensland mine-worker, who was a casual employee that had been on a number of rolling contracts over a 3 year period, was entitled to receive the same entitlements that a full-time employee would receive, I.e. annual leave, personal leave and other entitlements that full-time employees receive.  This was despite the fact that this employee received the standard 25% loading that casuals receive on top of their wage to make up for not receiving such benefits.  The court ruled that this was because the mine-worker’s employment was “regular, certain, continuing, constant and predictable“, and because he was given rostered shifts well in advance.

This ruling has potentially enormous ramifications for any business that employs casual workers and it’s likely this will play out politically.  If you have casuals that work regularly and systematically with an ongoing expectation of work, consideration needs to be given as to whether they are in fact casuals, and/or if a different type of engagement is more suitable, e.g. full-time, part -time or fixed term contract.

Further IR Reform?

In line with the Federal Government’s mantra of ‘saving lives and livelihoods’, the Government is now seeking to facilitate Industrial Relation (IR) reform.  The intention is for five reform committees to be established, where each will focus on one key area of the IR system, including:

• Award simplification
• Enterprise agreement making
• Casuals and fixed term employees
• Compliance and enforcement; and
• Greenfields agreements for new enterprises

According to the Attorney-General for Australia and Minister for Industrial Relations media release “The process is directed at committee members being potentially able to reach a consensus around policy proposals that the Government can then put into action, either by way of legislation, regulation, or via the budgetary process in October.” The detail at this stage is fairly scant.

Given we are in a state of likely reform in the industrial and workplace space, it is important that employers and managers stay abreast of these issues, the slated changes and assess any impacts that may likely affect their own businesses.

Nick Hedges is the founder of Resolve HR, a Sydney-based HR consultancy specialising in providing workplace advice to managers and business owners. He recently published his first book, “Is your team kicking failing or goals – Take control of your people and their performance”. It is a practical response to your most pressing HR challenges, which can be found at https://resolvehr.com.au/

Disclaimer: The contents contained do not constitute legal advice, and is not intended to be a substitute for legal advice and should not be relied upon as such.