End of Flexibility Provision in Modern Award

In or about March 2020, restrictions imposed to manage the circumstances of COVID-19 impacted many Australian businesses. To cushion COVID-19’s impact on employers and employees, on 28 March 2020 the Fair Work Commission (‘the FWC’) issued a decision enabling the insertion of a new schedule into the Clerk – Private Sector Award 2020 (‘the Clerks Award’), to increase flexibility of employment during this volatile time. These flexibilities are now due to cease on 30 June 2021.

‘Schedule I – Award Flexibility during the COVID-19 Pandemic’ (‘Schedule I’) was quickly supported by the Australian Council of Trade Unions and the Australian Services Union, coming into operation the day the decision was passed by the FWC with the intention of ceasing on 30 June 2020, unless an extension was deemed necessary.

Benefiting businesses during the onslaught of COVID-19 imposed restrictions, Schedule I included temporary provisions in the Clerks Award dealing with the creation of flexible working arrangements in response to pandemic-borne restrictions, notably with respect to remote work for full and part time employees, reduction in ordinary work hours, and enabling employers to request that employers to request that employees take annual leave. This equipped employers and employees with the capacity to adapt to the changed conditions and Schedule I was extended on 4 other occasions.

On the extension of Schedule I, the Full Bench of the FWC commented in a statement on 29 April 2021 that although ‘the restrictions are now easing… the direct economic and social impacts of the pandemic will be felt for some time to come’ justifying the continuation of Schedule I. As a result, the FWC extended the operation of Schedule I to ‘fulfil the need for flexible work arrangements to assist employers and employees in adapting to the changed conditions and to support recovery’.

However, as the restrictions steadily ease, so too does the need for COVID-specific flexible workplace conditions. Accordingly, the Full Bench of the FWC has formed the provisional view that Schedule I should cease on 30 June 2021. The Full Bench has invited interested parties to file submissions should there be any opposition to this provisional view. A hearing will take place on 21 May 2021 to address any submissions it receives.

Although Schedule I is anticipated to end, it seems that employers’ and employees’ adaptation to more flexible working arrangement is here to stay, with many Australian workers saying that an ideal working environment includes both a mix of remote and in-person work, in a recent study by PwC. If flexible working arrangements remain, employers should be mindful of changes to policies and procedure they will likely need to make in the post-COVID era of the workplace.

If your business needs advice regarding the post-COVID transition back to the workplace, or about maintaining working from home arrangements please do not hesitate to contact Nick Stevens, Luke Maroney, or Daphne Klianis.

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