In response to the challenges facing the Restaurant Industry, thanks to COVID-19, the Fair Work Commission varied some clauses of the Restaurant Industry Award from 31 March 2020.

The following information has been provided directly from FairWork.gov.au, which we’ve shared with our community to keep you updated with all the info you need to know:

On 31 March 2020, the Fair Work Commission (the Commission) made a determination varying the Restaurant Award. The determination inserted a temporary new Schedule, which applies from an employee’s first full pay period on or after 31 March until 30 June 2020. The new Schedule I adds award flexibility during the coronavirus outbreak for:

  • employees’ classifications and duties
  • full-time and part-time employees’ hours of work
  • directions to take annual leave.

The Commission may extend when Schedule I operates until, if necessary. We’ll update our information if that happens.

The following changes apply under Schedule I, for employers and employees covered by the Restaurant Award. Use Find my award if you’re not sure which award applies to you.

Unpaid pandemic leave

On 8 April 2020, the Commission issued a determination  inserting unpaid pandemic leave into the Restaurant Award. See Unpaid pandemic leave in awards.

Change in duties

JobKeeper changes to the Fair Work Act – Direction to change usual duties or location of work

Under the recent JobKeeper changes to the Fair Work Act, qualifying employers can temporarily change an eligible employee’s usual duties or work location in certain circumstances.

These employers don’t need to rely on Schedule I of the Restaurant Award to make these changes.

See JobKeeper changes to the Fair Work Act.

While Schedule I applies, employers can tell their employees to do any tasks that they have the skill and competency for, even if those tasks aren’t in their usual classification or normal work. The task must be safe and the employee must have all the appropriate licenses and qualifications to perform the tasks.

When an employee works at a higher classification for less than 2 hours, the employer needs to pay them at the higher rate for the hours worked. If the employee works at a higher classification for 2 hours or more, the employer needs to pay them at the higher rate for the whole day.

Employees who do tasks below their usual classification are still paid at their usual pay rate.

Example: Employee directed to do tasks at a higher level

Lindsay works part-time at a local toastie and coffee bar. They’re a food and beverage attendant grade 1. With further social distancing rules in place amid the coronavirus pandemic, their employer has had to cancel several casual employees’ shifts due to a drop in trade.

Lindsay’s employer has asked them to pick up some of the extra work, including making the coffees.

Lindsay is happy to do this, as they’ve recently completed a course to become a barista. They work as a barista for 3 hours a day.

Lindsay is paid as a food and beverage attendant grade 2 for their entire shift when they work as a barista.

Hours of work for full-time and part-time employees

JobKeeper changes to the Fair Work Act – Hours of work for full-time and part-time employees

Under the recent JobKeeper changes to the Fair Work Act, qualifying employers can temporarily direct eligible employees to work fewer hours or days (including no hours) in certain circumstances.

These employers don’t need to rely on Schedule I of the Restaurant Award to make these changes.

See JobKeeper changes to the Fair Work Act.

Employers can reduce their permanent employees’ hours of work so that they work an average of:

  • between 22.8 and 38 ordinary hours each week for full time employees
  • between 60% and 100% of the guaranteed hours per week or over the roster cycle for part-time employees.

If an employer wants to reduce an employee’s hours, they need to discuss the changes with them, making sure they:

  • follow the award’s consultation rules about changes to rosters or hours of work
  • provide as much notice as practicable.

If an employee is a member of the United Workers Union, their employer also needs to let their union know this change is happening.

Employees working reduced hours under Schedule I will continue to accumulate and take their paid leave based on their ordinary hours before the employer reduced the hours.

Example: reduction of hours

Harrison runs a Chinese restaurant in a beach side town and employs 8 staff who are employed under the Restaurant Award.

Due to an enforceable government direction, Harrison is only allowed to sell takeaway food. This means he doesn’t have enough work for all his staff and needs to reduce the hours of his full-time and part-time employees.

Some of Harrison’s employees are members of the United Workers Union. Harrison invites his employees and their United Workers Union organiser to an online meeting. During the meeting, they work through the award consultation clause, and after hearing the employees’ views, Harrison explains that all the full-time and part-time employees’ hours will need to be reduced.

Harrison’s employees will work 15% less hours per week until 30 May 2020, when they’ll reassess the situation.

In May, one of Harrison’s full-time employees gets sick and takes two weeks of paid sick leave while they’re unwell. Harrison pays that employee for 38 hours each week while they’re on sick leave because this is what their ordinary hours were before the reduction.

Annual leave

JobKeeper changes to the Fair Work Act – Annual leave

Under the recent JobKeeper changes to the Fair Work Act, qualifying employers can:

  • request an eligible employee to take paid annual leave (as long as the employee keeps a balance of at least 2 weeks paid annual leave)
  • agree in writing with the eligible employee for them to take annual leave at half their usual pay (including annual leave loading if it applies) for twice the length of time.

The employee has to consider the employer’s request to take annual leave and can’t unreasonably refuse it.

If an agreement is made under the JobKeeper provisions then while it is in place, it applies instead of the employee’s usual terms and conditions about taking annual leave.

See JobKeeper changes to the Fair Work Act.

Employers can direct an employee to take annual leave under Schedule I. Employers need to:

  • give their employees at least 24 hours’ notice
  • consider their employee’s personal circumstances.

Employees can take their annual leave at half pay, and double their time off work, if their employer agrees.

This means an employee gets payment for 1 week of annual leave (including annual leave loading if it applies) for every 2 weeks of annual leave they take.

An employee on leave at half pay accumulates annual leave and sick and carer’s leave as if they were on leave at full pay.

Close down of business

If a business is closing down for a period, employers can direct their employees to take annual leave under Schedule I by giving them at least 1 week’s notice (or any shorter period of notice that is agreed).

If an employee doesn’t have enough paid annual leave to cover the whole period, the employer can direct them to take unpaid leave for the remainder of the close down. The period of unpaid leave counts as service for entitlements under the:

  • Restaurant Award
  • National Employment Standards.

© Fair Work Ombudsman www.fairwork.gov.au

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*This is general information only and doesn’t take your specific circumstances into account.