On 31 March 2020, the Fair Work Commission agreed to vary the Restaurant Industry Award in response to the significant impact that the COVID-19 pandemic and the consequential government restrictions have had on the restaurant industry.

A temporary schedule was inserted into the Award to provide some flexibility for employers in relation to the range of duties employees can be required to perform, the reduction of an employee’s ordinary hours of work and directing employees to take annual leave.

The schedule will operate from 31 March 2020 until 30 June 2020, unless extended by the Commission.

Under the new schedule (schedule I) an employer can direct:

• an employee to perform any duties that are within their skill and competency regardless of their classification, provided that the duties are safe and the employee is licenced and qualified to perform them. The higher duties clause in the award will apply to employees engaged in duties carrying a higher rate than their ordinary classification.
• an employee to take annual leave with 24 hours’ notice, subject to considering their personal circumstances. Under the schedule, employers and employees can agree to the employee taking twice the duration of annual leave at half the rate of pay for all or part of any period of annual leave.
• an employee to take annual leave as part of a close-down of its operations or part of its operations by giving at least 1 weeks’ notice, or any shorter period of notice that may be agreed (the previous period of notice was 4 weeks). In relation to this direction:
  • where the employee has not accrued sufficient leave to cover the close-down, the employee can be paid annual leave for the period for which they have accrued sufficient leave and given unpaid leave for the remainder of the close-down.
  • any period of unpaid leave will count as service for the purposes of the award and NES entitlements, meaning, for example, the employee will continue to accrue annual leave whilst on unpaid leave.
• a full-time employee to work an average of between 22.8 to 38 ordinary hours per week and the employee will be paid on a pro-rata basis, and a part-time employee to work an average of between 60% to 100% of their guaranteed hours per week, or an average of between 60% and 100% of their guaranteed hours per week over the roster cycle. In relation to these directions:
  • the employee will continue to accrue leave based on their full-time or part-time ordinary hours of work prior to the commencement of schedule I.
  • if an employee takes a period of leave, payment for the leave will be based on their full-time or part-time ordinary hours of work prior to the commencement of schedule I.
  • prior to issuing a direction to reduce hours of work, an employer must consult with an employee about the changes to hours or rosters in accordance with the existing consultation clause (clause 8A) in the Restaurant Industry Award. In addition, if the employee is a member of the United Workers Union, the employer must notify the Union of its intention to implement these arrangements.

If you are an employer in the restaurant industry and would like further information on the above flexibility provisions or if you are considering applying the provisions to your workers, we recommend that you contact us to discuss your specific circumstances and the requirements and impact of the provisions.