The Fair Work Commission (‘FWC’) on 29 June 2020 agreed to vary and extend the operation of Schedule J – Award Flexibility During the COVID-19 Pandemic in the Hospitality Industry (General) Award 2020 (‘HIGA’).

The existing Schedule under the HIGA expired on 30 June 2020.  

In its decision^[1], 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.

In this document we look at some of the frequently asked questions in relation to the newly varied Schedule J.

When does the new Schedule J in the HIGA come into operation?
The newly varied Schedule J operates from 1 July 2020 until 27 September 2020.

What are the differences between the previous Schedule and the new Schedule J?Schedule J was a temporary schedule initially inserted into the HIGA on 24 March 2020 to implement flexibilities in response to the unique circumstances created from the COVID-19 Pandemic.  There are some differences between the previous version of the Schedule and the newly varied post 30 June 2020 Schedule J. The changes include the following:

Exclusion due to Jobkeeper

• The new Schedule J does not apply to employees that are ‘eligible employees’ under the JobKeeper Scheme. If an employer is receiving a Jobkeeper payment for a particular employee, Schedule J does not apply to that particular employee after 30 June 2020.

Consent to Arbitration

• Where an employer issues a direction under 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 the direction being settled by the FWC through arbitration in accordance with HIGA clause 40 and section 739(4) of the Fair Work Act 2009 (Cth).
   
• 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 Fair Work Act 2009 (Cth).

Hours of Work Direction

• 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

• The new Schedule J allows an employee to make a request, in response to a change to an 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 not unreasonably refuse the request.

Annual Leave

• Under the new Schedule J, instead of being able to direct an employee to take annual leave (e.g. where there has been a temporary close down of operations or the employee has excessive leave), the employer can now request an employee to take annual leave.
• Where an employer requests an employee to take paid annual leave, the following provisions 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 2020 but may end after that date. 

Does the AHA|SA have a template direction available for an employee to work reduced ordinary hours under Schedule J?

Yes. Under the AHA|SA Members only section under the Coronavirus Tab.

There is a template entitled Schedule J – Direction for Reduced Hours of Work that can be downloaded from the website.

The template will need to be tailored to suit the individual circumstances of the employee and employer.

Where can I find a copy of Schedule J?
The new Schedule J can be found in the HIGA and the latest copy of the HIGA can be found on the AHA|SA website in the Members only section under the Workplace Relations – Modern Awards Tab.  

What happens to employees that have been issued a direction to work reduced hours under the previous version of Schedule J prior to 30 June 2020?
If an employee was previously issued a direction to work reduced hours under the previous version of Schedule J of the HIGA, the direction can remain in place after 30 June 2020, provided the employee is not an “eligible employee” under the Jobkeeper Scheme and the employer is not in receipt of Jobkeeper payments for that particular employee.

If the previous direction provided an expiry date, then you will need to advise the employee that the timeframe for the direction has been extended until 27 September 2020, unless revoked earlier.

For those employees that you are receiving JobKeeper payments for, any existing directions made under Schedule J of the HIGA will cease to have effect after 30 June 2020 for those employees. Therefore, to continue reduced ordinary hours of work arrangements for the full-time or part-time employee you will need to implement a JobKeeper Enabling Stand Down Direction in accordance with Section 789GDC of the Fair Work Act 2009 (Cth).

A copy of the AHA|SA template for a Jobkeeper Enabling Stand Down is available under the Coronavirus Tab on the AHA|SA website.

I have issued one of my employees a Jobkeeper Enabling Stand Down Direction to work reduced ordinary hours, do I need to make any changes to that Jobkeeper Direction?
No. If you have issued an employee a Jobkeeper Enabling Stand Down Direction under the temporary Jobkeeper amendments to the Fair Work Act 2009 (Cth), the Jobkeeper Direction will remain in place. The extension of Schedule J of the HIGA will not have any impact upon the Jobkeeper Direction that was issued.

Does the new Schedule J in the HIGA have any impact on employees employed under an Enterprise/Collective Agreement?
No. Schedule J only affects employees employed under the HIGA.        

Who can I contact for any further information on Schedule J of the HIGA?
If you require any further information about the changes to Schedule J of the HIGA please contact Owen, Didier or Gary at the AHA|SA on 8232 4525.