Members are advised that the Fair Work Commission (‘FWC’) has approved a variation to Schedule J in the Hospitality Industry (General) Award 2020 (‘HIGA’).
As many members would be aware, Schedule J, a Schedule introduced in late March in response to the COVID-19 pandemic, had an expiry date of 30 June.
In its decision[1] handed down on 29 June, the FWC determined that the Australian Hotels Association’s application, made as a consent application with United Worker’s Union, to vary and extend the operation of Schedule J until 27 September 2020 was appropriate for meeting the Modern Awards Objective.
New Schedule J, operative from 1 July 2020, can be viewed HERE.
Schedule J: What’s Changed?
At the time Schedule J was introduced into the HIGA, the JobKeeper Payment Scheme (‘Scheme’) had not yet been announced. Schedule J introduced immediate flexibilities for employers in response to the COVID-19 pandemic and Government measures to control the spread of the virus.
Varied Schedule J has the same intention, however due to the Scheme’s operation, several changes were necessary for ensuring the flexibilities of Schedule J could continue for employers and employees.
Varied Schedule J, as effective from 1/7/20, differs from the first version of Schedule J in the following ways:
Exclusion due to JobKeeper
(Varied) Schedule J cannot be utilised for an employee employed by an employer who is receiving JobKeeper payments in respect of that employee.
That is, if an employer is receiving a JobKeeper payment for a particular employee, Schedule J cannot apply to that particular employee after 30 June.
This means that reductions to hours of work put in place under Schedule J prior to 30 June 2020 no longer have effect for those employees.
For employees that are not eligible for JobKeeper, for example, the employees are subject to a visa that was excluded from the Scheme, their employer can utilise the flexibilities of Schedule J for those employees only. This is despite the employer participating in JobKeeper for other employees.
Consent to Arbitration
Where an employer issues a direction under (varied) Schedule J, the direction will not be valid unless the employee (to whom the direction applies) is advised in writing that the employer consents to a dispute arising from a direction being settled by the FWC through arbitration in accordance with HIGA clause 40 and section 739(4) of the Act.
Template wording that an employer can use within the text of any direction issued on or after 1 July 2020 is:
‘The employer confirms that it consents to a dispute arising from this direction being settled by the Fair Work Commission through arbitration in accordance with HIGA clause 40 and section 739(4) of the Act’
Change to hours of work
The variation has introduced a new requirement for employers to ensure that directions given to full time and part time employees to reduce their ordinary hours meet certain requirements.
The requirements are at new clause J.9.2(c), and provide that a direction under J.9.2(a) or J.9.2(b) can only be given if:
- ‘The employee cannot usefully be employed for the employee’s normal days or hours during the period of the direction because of changes to the business attributable to:
- The COVID-19 pandemic; or
- Government initiatives to slow the transmission of COVID-19; and
- The direction is reasonable in all the circumstances; and
- The direction is given in writing’.
NOTE: the provisions of Schedule J as they relate to the directions that can be issued to reduce the ordinary of hours of full time and part time employees (J.9.2(a) and J.9.2(b) respectively) do not change as a result of the variation.
Employee requests after a change to hours of work direction
From 1 July, Schedule J contains a clause (at J.8.2(g) allowing an employee to make a request, in response to a change to hours of work direction issued by the employer, for any of the following:
- A request to engage in reasonable secondary employment;
- A request for training; or
- A request for professional development.
If one of the above requests is made, an employer is obliged to consider the request, and to not unreasonably refuse the request.
Annual leave
Annual leave directions have been replaced from 1/7/20 with the new Schedule J closely mirroring section 789GJ of the Fair Work Act 2009 (‘Act’): the ability for an employer to request an employee to take annual leave.
This section of the Act was introduced with the JobKeeper amendments of 9 April, (which brought in JobKeeper Enabled Directions).
(Varied) Schedule J provides that instead of an employer being able to direct an employee to take annual leave (eg where there has been a temporary close down of operations, or the employee has excessive leave), an employer can only request an employee to take annual leave.
The request can only be made where the same circumstances apply ie a close down has occurred (HIGA clause 30.4) or the employee has excessive leave accruals (HIGA clauses 30.6-30.8).
Where a request has been made, the following provisos apply:
- The request must be reasonable in the circumstances;
- The request is made for reasons attributable to the COVID-19 pandemic or Government initiatives to slow the transmission of COVID-19, and is necessary to assist the employer to avoid or minimise the loss of employment;
- The request cannot be unreasonably refused by an employee;
- Complying with the request will not result with the employee having an annual leave balance of less than 2 weeks; and
- The period of leave commences before 13 September (although it can finish after that date).
I am participating in JobKeeper. What do I need to do?
Employees you are receiving JobKeeper payments for
For those employees that you are receiving JobKeeper payments for, any existing directions made Schedule J will cease to have effect after 30 June for those employees.
Therefore, to continue those arrangements you will need implement a JobKeeper Enabled Direction.
A copy of QHA’s JobKeeper Enabled Directions Fact Sheet, together with template Directions and Requests, can be downloaded from HERE.
Employees not on JobKeeper eg they are not eligible
For those employees who are not eligible for JobKeeper, you can maintain your existing Schedule J directions.
Depending on what has been said about the direction expiring, you do not need to replace your Schedule J direction with a new one. You will, however, need to talk to your employees about extending the direction – if you have provided an expiry date.
If you used the QHA’s template Schedule J direction, and retained the following wording from the template:
Expected time frame for varied hours of work
<Insert company name> expects these varied hours of work will be in effect until 30 June 2020.
However, this time frame may be extended if the deteriorating effect of COVID-19 continues, and accordingly, the provisions of the HIGA are extended. We will advise you of any changes as and when they become available.
you will need to advise the employee that the timeframe for the direction has been extended until 27 September 2020, unless it is revoked earlier.
I am not participating in JobKeeper
If you are not participating in the Scheme, and the HIGA covers your employees, you do not need to do anything about existing work hours reduction directions in place.
You will need to comply with Schedule J, for any new directions / annual leave requests made from 1 July 2020.
I have a collective agreement in place
Due to having a collective agreement in place at your workplace, not the HIGA, this article has no impact for you.
NEW HIGA COPY
An updated copy of the HIGA containing varied Schedule J can be downloaded from HERE.
MORE INFORMATION
Employment relations contacts were advised of the change to Schedule J via an ER Bulletin on 29 June 2020.
For more information, or to discuss your situation, please contact the QHA’s Employment Relations team on 07 3221 6999 or via email er@qha.org.au
[1] [2020] FWCFB 3405 at [18]-[38]
