As restrictions are progressively lifted and venues increase their operation and offerings, members should ensure that they continue to comply with modern award or workplace agreement terms that are not affected by the special arrangements currently in place because of COVID-19.
While the operation of the JobKeeper scheme and Schedule J of Hospitality Industry (General) Award 2020 (HIGA) means that certain modern award provisions do not apply as they normally would, there are of course many modern award terms that remain applicable and that should be considered as hours increase for employees.
The JobKeeper scheme (being the Coronavirus Economic Response Package (Payments and Benefits) Bill 2020 that allowed the JobKeeper payment rules and the Coronavirus Economic Response Package Omnibus (Measures No. 2) Bill 2020 that temporarily amended the Fair Work Act 2009) has allowed eligible employers to direct eligible employees to work reduced hours or days, to undertake alternative duties and to work at an alternative location. The JobKeeper scheme has also allowed employers to ask an employee to work on different days and times to their ordinary hours and days and to take accrued annual leave. The temporary changes override any corresponding provision in an employment contract, in a modern award HIGA, or in an Enterprise Agreement (including a pre-July 2010 workplace agreement eg Collective Agreement) to the extent specified in a JobKeeper-related direction or agreement.
Schedule J is a temporary schedule inserted into the HIGA to allow certain award flexibilities as a result of COVID-19. Schedule J has allowed for changes in the number of hours worked by full-time and part-time employees. Schedule J can not be applied where an employee is a JobKeeper eligible employee.
Clause 16 of the HIGA provides for meal breaks. Clause 16 is not affected by Schedule J of the HIGA or a JobKeeper direction. If a shift is long enough that an employee is entitled to a meal break, whether paid or unpaid depending on the length, then that break must taken by the employee.
If an employee is performing duties of a higher level, then higher duties (clause 22 of the HIGA) is applicable. Schedule J expressly states that higher duties will apply, and for JobKeeper eligible employees, section 789GE states that a higher rate is payable if the duties performed carry a higher rate.
Employers should be mindful that allowances remain applicable irrespective of Schedule J of the HIGA or the JobKeeper scheme. Allowances such as the tool allowance (clause 26.5 of the HIGA), clothing allowances (clause 26.6 of the HIGA) and the overtime meal allowance (clause 26.4 of the HIGA) still apply to those employees entitled to those allowances. The split shift allowances in clause 26.14 of the HIGA, previously known as the broken periods of work allowance, also remains applicable when a split shift is worked. Payment for allowances can be contained within the JobKeeper payment, however payment of allowances must be properly recorded and employers must ensure that the employee receives the correct payment after hours of work, allowances and the JobKeeper payment are taken into consideration.
Overtime and Penalty Rates
Overtime (clause 28 of the HIGA) and penalty rates (clause 29 of the HIGA) remain applicable when they occur, irrespective of Schedule J of the HIGA or the JobKeeper scheme. In the case of the JobKeeper scheme, when overtime or penalty rates are worked, the records must reflect that and the employer must ensure that the employee receives the correct payment. For Example, if the payment of wages including penalty rates and/or overtime is more than the JobKeeper payment of $1500 per fortnight, then that higher amount is payable.
Wage Increase 1 July – REMINDER
Readers are reminded that the Fair Work Commission, in determining there will be a 1.75% increase to award rates, has delayed the implementation of the increase.
This means that for the Hospitality Industry (General) Award 2020 the increase will not have any effect until 1 February 2021.
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.