COVID-19 DRIVEN SHIFT IN FLEXIBILITY

COVID-19 DRIVEN SHIFT IN FLEXIBILITY

The COVID-19 pandemic has no doubt changed the way we live and work.  We continue to see interesting developments throughout the employment law space as it adapts to the impacts of the COVID-19 pandemic including most recently:

1.  A draft Modern Award schedule dealing with working from home arrangements; and

2.  The introduction of the Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Bill 2020.

Working from home

We have seen a significant increase in working from home arrangements as a result of COVID-19.

In an effort to facilitate further workplace flexibility to enable employers and employees to respond to challenges quickly and to meet the changing expectations of employees, the Fair Work Commission has prepared a model Flexibility Schedule for potential inclusion in suitable Modern Awards.

The draft model Flexibility Schedule includes provisions that allow for:

1.  Disputes about the operation of the schedule to be dealt with by the Fair Work Commission, by arbitration (noting that an employer that proposes to or makes an arrangement under the schedule, is required to consent to arbitration).

2.  An employer and employee to reach agreement on a working from home arrangement that balances the personal and work responsibilities of the employee with business needs.

3.  Permanent employees to request to “compress” their working week so that their usual weekly ordinary hours are worked over a reduced number of their usual workdays.

4.  Employees to take twice as much annual leave at half pay with their employer’s agreement.

5.  Employees to purchase additional leave with their employer’s agreement.

6.  A change in the span of hours in a workplace or section of a workplace with the agreement of 75% of employees.

7.  An agreement to share a reduction in working hours in a workplace or section of a workplace with the agreement of 75% of employees, in circumstances where an employer cannot usefully employ all of the permanent employees in a workplace or section of a workplace.

8.  An employer direction to an employee to perform all duties within their skill and competency.

9.  An employer direction to an employee to work at a different workplace (including the employee’s home).

10.  An employer direction to employees to stagger starting and finishing times of work.

The Fair Work Commission has made it clear that the Flexibility Schedule has been drafted as a “starting point for discussions” and that not all clauses will be suitable for all Modern Awards and some may need amending. Further proposals for additional flexibility may also be bought forward and implemented.

If you are interested, you can view the draft Flexibility Schedule at “Attachment B”  to a recent statement released by President Iain Ross:

https://www.fwc.gov.au/documents/documents/resources/covid-19-information/presidents-statement-fwc-covid-19-response-2020-08-31.pdf

Flexibility for parents

The Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Bill 2020 (“Bill”) was introduced by the Morrison Government early this month.

IR Minister Christian Porter advised Parliament that “These expectations and the needs of Australian families for greater flexibility to combine work and care have been brought into sharp relief by the impact of the COVID-19 pandemic”.

The significant changes the Bill will bring about, are set out below:

1.  Currently, parents who have a stillbirth or infant death are only entitled to six (6) weeks of unpaid leave before they can be required to return to work. However, the Bill creates a guaranteed entitlement of 12 months of unpaid leave for eligible parents.

2.  Parents will be allowed to take up to 30 days of flexible unpaid parental leave until their child turns two (2). IR Minister Christian Porter gave Parliament an example of what this could mean, “for example, a new parent spending a block of unpaid parental leave with their newborn after birth and then taking 30 days flexibly after they return to work”.

3.  A barrier is proposed to be removed that prevented parents of premature babies or newborns that experienced birth-related complications resulting in immediate hospitalisation from going back to work while their child is in hospital, and then restarting their unpaid parental leave when their baby came home.

Progress

We will keep you up to date on how the above matters progress.  If you have any questions about how the proposed changes may affect your business, please get in touch with the team at HR Law.

Please also note that this article is current at the date of publishing. The formal legislation is yet to be finalised and may be subject to changes.

WHAT YOU MAY HAVE MISSED

Mondelez leave decision gets overturned

The High Court last month set aside the Full Federal Court’s decision regarding the accrual of personal/carer’s leave for part-time employees and employees who work an average of more than 7.6 hours per day.

This decision means that the original interpretation that part-time employees are entitled to 1/26 of the entitlement of full-time employees is correct.

The High Court stated: “The expression ’10 days’ in s96(1) of the Fair Work Act 2009 (Cth) means an amount of paid personal/carer’s leave accruing for every year of service equivalent to an employee’s ordinary hours of work in a week over a two-week (fortnightly) period, or 1/26 of the employee’s ordinary hours of work in a year. A ‘day’ for the purposes of s 96(1) refers to a ‘notional day’, consisting of one-tenth of the equivalent of an employee’s ordinary hours of work in a two-week (fortnightly) period.”

The decision is a welcome outcome for employers although it may cause some need to act if an employer has changed their Employment Contracts or if they have amended their accrual rates as a result of the Full Federal Court Decision handed down on 21 August 2019. 

HR Law Receives Excellence Award

The team at HR LAW are thrilled to have received an Excellence Award in the category of Employment Law Specialist Firm of the Year at the 2020 Australasian Law Awards.  We could not do what we do without our wonderful clients and the support of all of the HR Law team.

The content of this article is intended to provide a general guide to the subject matter.  Specialist advice should be sought about your specific circumstances.

 

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