DETERMINATION

Fair Work Act 2009
s.157–Variation of a modern award to meet the modern awards objective

Award flexibility–General Retail Industry Award 2020
(C2021/7)

GENERAL RETAIL INDUSTRY AWARD 2020
[MA000004]

Industrial relations reform working groups – letter from Minister – award flexibility – joint application – part-time additional hours – General Retail Industry Award 2020.

A. Further to decision [[2021] FWCFB 3571] issued by the Full Bench on 28 June 2021, the above award is varied as follows:

1. By deleting clause 10 and inserting the following:

10. Part-time employees

10.1 An employee who is engaged to work for fewer than 38 ordinary hours per week and whose hours of work are reasonably predictable, is a part-time employee.

10.2 An employer may employ part-time employees in any classification defined in Schedule A—Classification Definitions.

10.3 This award applies to a part-time employee in the same way that it applies to a full-time employee except as otherwise expressly provided by this award.

10.4 A part-time employee is entitled to payments in respect of annual leave and personal/carer’s leave on a proportionate basis.

10.5 At the time of engaging a part-time employee, the employer must agree in writing with the employee on a regular pattern of work that must include all of the following:

(a) the number of hours to be worked on each particular day of the week (the guaranteed hours); and

(b) the times at which the employee will start and finish work each particular day; and

(c) when meal breaks may be taken and their duration.

NOTE: An agreement under clause 10.5 could be recorded in writing including through an exchange of emails, text messages or by other electronic means.

10.6 Changes to regular pattern of work by agreement

The employer and the employee may agree to vary the regular pattern of work agreed under clause 10.5 on a temporary or ongoing basis, with effect from a future date or time. Any such agreement must be recorded in writing:

(a) if the agreement is to vary the employee’s regular pattern of work for a particular rostered shift – before the end of the affected shift; and

(b) otherwise – before the variation takes effect.

NOTE 1: An agreement under clause 10.6 could be recorded in writing including through an exchange of emails, text messages or by other electronic means.

NOTE 2: An agreement under clause 10.6 cannot result in the employee working 38 or more ordinary hours per week.

EXAMPLE: Sonya’s guaranteed hours include 5 hours work on Mondays. During a busy Monday shift, Sonya’s employer sends Sonya a text message asking her to vary her guaranteed hours that day to work 2 extra hours at ordinary rates (including any penalty rates). Sonya is happy to agree and replies by text message confirming that she agrees. The variation is agreed before Sonya works the extra 2 hours. Sonya’s regular pattern of work has been temporarily varied under clause 10.6. She is not entitled to overtime rates for the additional 2 hours.

10.7 The employer must keep a copy of any agreement under clause 10.5, and any variation of it under clause 10.6 or 10.11, and, if requested by the employee, give another copy to the employee.

10.8 For any time worked in excess of their guaranteed hours agreed under clause 10.5 or as varied under clause 10.6 or clause 10.11, the part-time employee must be paid at the overtime rate specified in Table 10—Overtime rates.

10.9 The minimum daily engagement for a part-time employee is 3 consecutive hours.

10.10 Changes to regular pattern of work by employer

(a) An employee’s regular pattern of work agreed under clause 10.5 or 10.6, other than the employee’s guaranteed hours, may be changed by the employer giving the employee 7 days, or in an emergency 48 hours, written notice of the change.

(b) However, the regular pattern of work of a part-time employee must not be changed from week to week or fortnight to fortnight or to avoid any award entitlements. If the employer does so, the employee must be paid any award entitlements as if the regular pattern of work had not been changed.

NOTE 1: Clause 15.7 contains additional rostering provisions. Clause 35 contains requirements to consult with employees about roster changes.

NOTE 2: See clause 27—Rostering restrictions for the rosters of shiftworkers.

NOTE 3: An employee’s guaranteed hours including the days on which those guaranteed hours are agreed to be worked can only be changed by agreement. See clause 10.6.

10.11 Review of guaranteed hours

(a) If an employees’ guaranteed hours are less than the ordinary hours that the employee has regularly worked in the previous 12 months, the employee may request in writing that the employer increase their guaranteed hours on an ongoing basis to reflect the ordinary hours regularly being worked.

(b) An employee may only make a request under clause 10.11(a) once every 12 months.

(c) The employer must respond in writing to the employee’s request within 21 days.

(d) The employer may refuse the request only on reasonable grounds.

EXAMPLE: Reasonable grounds to refuse the request may include the reason that the employee has regularly worked more ordinary hours than their guaranteed hours is temporary—for example where this is the direct result of another employee being absent on annual leave, long service leave or worker’s compensation.

(e) Before refusing a request under clause 10.11(c), the employer must discuss the request with the employee and genuinely try to reach agreement on an increase to the employee’s guaranteed hours that will give the employee more predictable hours of work and reasonably accommodate the employee’s circumstances.

(f) If the employer and employee agree on an increase to the employee’s guaranteed hours, the employer’s written response must record the agreed increase.

(g) If the employer and employee do not reach agreement, the employer’s written response must include details of the reasons for the refusal, including the ground or grounds for refusal and how the ground or grounds apply.

NOTE: If the employer and employee agree in writing to increase the employee’s guaranteed hours, this will vary the agreement under clause 10.5.

(h) The employer and employee may seek to resolve a dispute about a request under clause 10.11(a) in accordance with clause 36—Dispute resolution.

NOTE: This could include a dispute about whether the employer’s refusal of a request was reasonable, whether the employer discussed the request with the employee as required under clause 10.11(e), or whether the employer responded in writing to the request as required under clauses 10.11(c), (f) or (g).

2. By deleting clause 15.9 and inserting the following:

15.9 Notification of rosters

(a) The employer must ensure that the work roster is available to all employees, either exhibited on a notice board which is conveniently located at or near the workplace or through accessible electronic means.

(b) The roster must show for each employee:

(i) the number of ordinary hours to be worked by them each week; and

(ii) the days of the week on which they will work; and

(iii) the times at which they start and finish work.

(c) The employer must retain a copy of each completed work roster for at least 12 months and produce it, on request, for inspection to an authorised person.

(d) Due to unexpected operational requirements, the roster of an employee other than a part-time employee may be changed by mutual agreement by the employer and the employee at any time before the employee arrives for work.

NOTE 1: Clause 10.6 deals with when the roster of a part-time employee may be changed by mutual agreement.

NOTE 2: Clause 35 contains requirements to consult with employees about roster changes.

(e) For employees other than part-time employees, the employer may make permanent roster changes at any time by giving the employee at least 7 days’ written notice of the change. If the employee disagrees with the change, the period of written notice of the change required to be given is extended to at least 14 days in total.

NOTE: Clause 10.10 deals with when the roster of a part-time employee may be changed by their employer.

(f) The employer and employee may seek to resolve a dispute about a roster change in accordance with clause 36–Dispute resolution.

(g) Clause 15.9(h) applies to an employee other than a part-time employee whose roster is changed in a particular week for a one-off event that does not constitute an emergency and then reverts to the previous roster in the following week.

(h) The employer must pay the employee at the overtime rate specified in Table 10–Overtime rates for any extra time worked by the employee because of the roster change in clause 15.9(g).

(i) An employer must not change the roster of an employee with the intention of avoiding payment of shiftwork or penalty rates, loadings or other applicable benefits. If the employer does so, the employee must be paid any shiftwork or penalty rates, loadings or benefits as if the roster had not been changed.

NOTE: See clause 27 – Rostering restrictions for the rosters of shiftworkers.

3. By deleting clause 21.2(b) and inserting the following:

(b) An employer must pay a part-time employee for hours worked in excess of their guaranteed hours as agreed in clause 10.5 or as varied under clause 10.6 or clause 10.11 at the overtime rate specified in column 2 of Table 10- Overtime rates.

4. By updating the cross-refences accordingly.

B. This determination comes into effect on 1 July 2021. In accordance with s.165(3) of the Fair Work Act 2009 (Cth) this determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after 1 July 2021.

PRESIDENT

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