Following a decision by the Fair Work Commission on 5/8/2020, the COVID Schedule that was temporarily inserted into the Vehicle Repair, Service and Retail Award 2020, will now have effect until 31/8/2020.  This temporary provision has already been extended twice, and the option remains for it to be extended again. It is important to note that while these temporary changes are the result of a negotiated consensus between some employer organisations and unions, for the fuel retail industry, their practical application will be extremely limited due to their construction.

Changes Overview

The temporary Schedule allows Directions to be issued, provided they comply with the requirements.  The provisions of the Schedule will not apply to any employee that is employed by a business that qualifies for the JobKeeper Scheme if that employee is an ‘eligible employee’ for the JobKeeper Scheme.  For non-eligible staff this Schedule allows for flexibility in the form of allowing;

  • The business to issue a Direction to reduce the employees hours, provided minimum pay levels are met
  • The business to issue a request to the employee to take annual leave, provided minimum balances are maintained, which the employee must not unreasonably refuse

as well as addressing other areas of temporary flexibility including; higher duties, close down and secondary jobs and training provisions.

Direction to Reduce Hours

The Award changes allows, temporarily, for the business to direct, permanent non-JobKeeper Staff hours to be reduced, but only if the Direction meets certain requirements, are the employee is still provided with the minimum payments for either the Permanent Full Time or Part Time as appropriate.

Using the Schedule to reduce hours, for Permanent staff, the Minimum Payment required limits the number of hours the employees hours can be reduced to, depending on age and classification. 

For example, when applying the minimum payment at the base rate it is clear that; a full time Adult Driveway Attendant, can have their hours reduced from 38 to 28.62 using the Schedule, but not below that level. 

The relevant fuel retail classifications and the level the hours can be reduced to is outlined below;

Permanent FULL TIME Retail Fuel Classifications – may not be reduced below the minimum payment level of $1,115.70 per fortnight – at the Base Rate this has the effect of;

  • Driveway Attendant R1
    • ADULT, usually working 38 hours a week, can be directed to reduce to 28.62 hours per week, using this Schedule
    • 20y, usually working 38 hours a week, can be directed to reduce to 32.71 hours per week, using this Schedule
    • 19y, usually working 38 hours a week, can not have hours reduced, using this Schedule
    • 18y, usually working 38 hours a week, can not have hours reduced, using this Schedule
    • 17y, usually working 38 hours a week, can not have hours reduced, using this Schedule
    • 16y and under, usually working 38 hours a week, can not have hours reduced, using this Schedule
  • Roadhouse Attendant TAKEAWAY R2
    • ADULT, usually working 38 hours a week, can be directed to reduce to 27.81 hours per week, using this Schedule
    • 20y, usually working 38 hours a week, can be directed to reduce to 31.78 hours per week, using this Schedule
    • 19y, usually working 38 hours a week, can be directed to reduce to 37.08 hours per week, using this Schedule
    • 18y, usually working 38 hours a week, can not have hours reduced, using this Schedule
    • 17y, usually working 38 hours a week, can not have hours reduced, using this Schedule
    • 16y and under, usually working 38 hours a week, can not have hours reduced, using this Schedule
  • Console Operator R4
    • ADULT, usually working 38 hours a week, can be directed to reduce to 25.90 hours per week, using this Schedule
    • 20y, usually working 38 hours a week, can be directed to reduce to 29.60 hours per week, using this Schedule
    • 19y, usually working 38 hours a week, can be directed to reduce to 34.53 hours per week, using this Schedule
    • 18y, usually working 38 hours a week, can not have hours reduced, using this Schedule
    • 17y, usually working 38 hours a week, can not have hours reduced, using this Schedule
    • 16y and under, usually working 38 hours a week, can not have hours reduced, using this Schedule

Permanent PART TIME Retail Fuel Classifications – may not be reduced below the minimum payment level of $836.78 per fortnight, if the employee was earning more than this before the reduction – at the Base Rate this has the effect of;

  • Driveway Attendant R1
    • ADULT, usually working more than 21.47 hours per week, can be directed to reduce to 21.47 hours per week, using this Schedule
    • 20y, usually working more than 24.53 hours per week, can be directed to reduce to 24.53 hours per week, using this Schedule
    • 19y, usually working more than 28.62 hours per week, can be directed to reduce to 28.62 hours per week, using this Schedule
    • 18y, usually working more than 34.35 hours per week, can be directed reduce to 34.35 hours per week, using this Schedule
    • 17y, can not have hours reduced, using this Schedule
    • 16y and under, can not have hours reduced, using this Schedule
  • Roadhouse Attendant TAKEAWAY R2
    • ADULT, usually working more than 20.86 hours per week, can be directed to reduce to 20.86 hours per week, using this Schedule
    • 20y, usually working more than 23.84 hours per week, can be directed to reduce to 23.84 hours per week, using this Schedule
    • 19y, usually working more than 27.81 hours per week, can be directed to reduce to 27.81 hours per week, using this Schedule
    • 18y, usually working more than 33.37 hours per week, can be directed to reduce to 33.37 hours per week, using this Schedule
    • 17y, can not have hours reduced, using this Schedule
    • 16y and under, can not have hours reduced, using this Schedule
  • Console Operator R4
    • ADULT, usually working more than 19.42 hours per week, can be directed to reduce to 19.42 hours per week, using this Schedule
    • 20y, usually working more than 22.20 hours per week, can be directed to reduce to 22.20 hours per week, using this Schedule
    • 19y, usually working more than 25.90 hours per week, can be directed to reduce to 25.90 hours per week, using this Schedule
    • 18y, usually working more than 31.08 hours per week, can be directed to reduce to 31.08 hours per week, using this Schedule
    • 17y, can not have hours reduced, using this Schedule
    • 16y and under, can not have hours reduced, using this Schedule

So for any permanent staff working at or below this level of hours per week the changes to the Award will not allow any further reduction in hours by Direction utilising the Schedule, and no Direction can result in a reduction below this level.

Of course, employers and employees can still, by agreement, agree to variations of hours outside of this new Direction framework.

It is important to note, that all entitlements will accrue as if any reduction in hours had not happened.  Similarly, and leave taken during the period of reduced hours will be at the pre reduction level.

Request to take Annual Leave

The Award change allows, temporarily, for the business to request that an employee take annual leave.  The request can only be made after considering the employees personal situation and, after any taken leave as a result of the request, result in the employees annual leave balance of at least 2 weeks.

By agreement the annual leave can be taken at half pay over twice the period

The requested annual leave taken must commence before 31/8/2020.

Direction/Request Requirements

Any Direction or Request must be;

  • Presented following genuine consultation with the affected employees, with as much notice as practicable (Direction requirement only)
  • Presented following contacting the union representative of any affected employee that is a member of a union (Direction requirement only)
  • Reasonable
  • In Writing
  • Acknowledge in writing that the business consents to disputes arising from the directive be settled by the Fair Work Commission through arbitration in accordance with Clause 9.5 – Dispute Resolution and section 739)4) of the Act
  • Automatically ended on the withdrawal date of the clause (31/8/2020) – so any directive to reduce hours would automatically be withdrawn on 31/8/2020 and employees would return to standard (unreduced hours) on 1/9/2020

Any Direction or Request that does not meet these requirements will not be valid.

Limited Practical Capacity for Change

ACAPMA noted, in its submission on the proposed changes in May 2020, the capacity of the retail fuel sites to utilise the hours reductions provisions would be extremely limited, and thus its changes, for our industry, would have very little effect. 

ACAPMA noted that the nature of Schedule, with the minimum payments combined with the particular patterns of employment in the downstream petroleum industry, where very few full time employees are engaged, with a larger number of part time employees who typically work less than 21 hours per week, rendered the capacity to reduce hours using the Schedule extremely limited. 

A review of the table above shows that an adult console operator working 21 hours per week could, using the Schedule have their hours reduced to no less than 19.42 hours per week, which will be of limited practical value to sites.

While the changes are limited in application time and particularly for the fuel retail industry, their practical application will be extremely limited due quirks of the industry and the construction of the changes themselves, they are the result of a consensus process that aimed to deliver practical outcomes to a very broad and diverse industry.

Where to now

These changes are temporary, due to end on 31/8/2020.  They may be extended via another application to vary the Award.  ACAPMA stands ready to assist any members who require assistance in navigating the requirements of this new clause.  Please email employment@acapma.com.au for assistance.