The QHA’s Employment Relations (‘ER’) department has been taking a high volume of calls from members enquiring about potential avenues for reducing the working hours of permanent staff due to a recent slowing of business resulting from government mandates aimed at stopping the spread of COVID-19 by restricting the movements of residents in south east Queensland and other states of Australia.
Ask Employees to Undertake Alternative Duties
Clause 17 of the Hospitality Industry (General) Award 2020 (‘HIGA’) provides that:
An employer may require an employee to perform duties across the different classification streams… that they are competent to perform.
This means that, for example, an employee substantively engaged as a food and beverage attendant could potentially be asked to perform cleaning duties. Other modern awards, registered Agreements and even employment contracts may contain a similar provision.
Ask Employees to take Annual Leave or Authorised Unpaid Leave
Management could consider drafting and disseminating a memo explaining the current situation and appealing for staff to take some accrued unused annual leave or unpaid leave . Once given, approval to take annual leave cannot be unreasonably revoked.
An employee could only be directed to take annual leave in accordance with the terms of an applicable industrial instrument or the Fair Work Act 2009 (‘FW Act’). For example, an employee who is covered by the HIGA can only be directed to take annual leave:
- As part of a temporary close-down of all or part of the employer’s operations, in accordance with clause 30.4 of the HIGA (4 weeks’ notice is required to be given to the employee), or;
- Where an employee has excessive (i.e. more than 8 weeks’) annual leave accrued, subject to the conditions set out in clause 30.7 of the HIGA.
Agree on a Temporary Variation to Employees’ Contracts
Where an employee is normally engaged on a permanent full-time basis, the agreement can be to either:
- Temporarily change their employment status to permanent part time.
The conditions set out in clause 10 of the HIGA would apply for the duration of the variation timeframe.
- Continue as a full-time employee but agree that temporarily, they will work less than an average of 38 hours per week (subject to operational requirements), with the balance of their 38-hour working week taken as authorised, unpaid leave.
Authorised unpaid leave does not break an employee’s continuous service, however similarly does not count towards it; as such it does not attract further leave accruals.
Stand Employees Down under section 524(1)(c) of the Fair Work Act 2009 (‘FW Act’)
Note: This section should be read in conjunction with the QHA’s Stand Down Fact Sheet, which can be accessed HERE. You may also wish to review information available on the Fair Work Ombudsman’s website HERE.
Many members have questioned whether staff can be placed on unpaid stand down due to decreased patronage or low occupancy, particularly once lockdown orders such as those that have recently applied to local government areas (LGAs) in and around Brisbane and in Cairns and Yarrabah have been lifted. While the circumstances surrounding a stand down where a business is not prevented from opening (by government direction or restrictions) are less clear, the legitimacy of a stand down as per section 524(1)(c) of the FW Act cannot be guaranteed as only the Fair Work Commission (‘FWC’) or other legal authority can make a binding decision as to legitimacy. If the FWC were (in the case of a stand down dispute) to find that the stand down was not valid as per section 524(1)(c), the usual remedy for the employee is an order that the employer back pay for the period of the stand down.
Where a business is experiencing a deterioration of operation, and the measures that have been mandated (both at national and state level – even if not directly applicable to the region) in response to COVID-19 are such that the business can no longer operate at full capacity (and the deterioration is occurring as a result of them), it is likely that the stand down provisions of the FW Act can be used.
In such cases, we suggest gathering data that would be relevant in demonstrating that the measures in play are responsible for the impact on the business’s operation. For example, where do most of the venue’s customers come from and for what is the purpose of their visit? If they are travelling from Victoria, for example, are restrictions in place that prevent Victorians coming to Queensland without having to quarantine first? How long have they been in operation? If weddings are a large portion of your business, is the limit on the number of guests who are able to attend resulting in cancellations or postponements? Having this level of detail will assist in justifying a stand down if an employee whose employment has been stood down challenges this.
Please note that the partial stand down of an individual employee is not permitted by the FW Act, however it may be possible to stand down certain employees, leaving only the staff required to operate the business based on current demand. If you proceed in this manner, it is important that you are able to justify why particular employees were selected over others for stand down; your selection must be based on demonstrable merit and need.
Ultimately, should reduced labour demand persist, it may be necessary to consider the redundancy of one or more positions. For further information in relation to the redundancy process, access the QHA’s Redundancy Fact Sheet HERE.
|QHA members seeking more information or wishing to discuss a specific employment relations matter are encouraged to contact the Employment Relations Department for a confidential discussion by calling (07) 3221 6999 or emailing firstname.lastname@example.org.|