Off the Omnibus: part-time flex

Flexibility to change part-time hours cast aside in the parliamentary wrangling over the IR 'Omnibus' Bill

Award rigidity remains a challenge for businesses. In a global pandemic, we saw the Fair Work Commission (FWC) and the Government act at lightning speed to inject flex into the award system to support COVID Pivots: we saw new found flex around the nature of the job, the location of the job and the hours of work, with protections via JobKeeper for ongoing (but not casual) workers’ wages. The award system would normally have constrained these sorts of flexibilities.

A successful economic recovery hinges on businesses having the confidence to provide more jobs and hours to employees.

One measure proposed in the now abandoned schedules of the Government’s Bill would have helped achieve this by enabling part-time employees working additional hours arrangements.

Part-time work generally requires set work patterns. While this provides certainty, it constrains employees changing their hours to suit them or accessing extra hours they want.

The rules require a combination of notice and written agreement and often the payment of changed hours at an overtime rate. 

While these rules are intended to protect workers, they are based on an assumption that changes are employer demanded and not employee desired, which often does not reflect the reality of modern work.

The Bill proposed allowing part-time employees, to agree with their employers to do extra hours at their ordinary rate. Employees could refuse an additional hours agreement. This proposal would provide a consistent approach to managing part-time hours across awards and support Australia’s economic recovery by employees to work extra hours at the base rate.

In the meantime, the battle for part-time flexibility reform was also being played out in the Fair Work Commission (FWC). The Council of Small Business Organisations Australia (COSBOA) on behalf of the Master Grocers Association (MGA) and the Shop, Distributive and Allied Employees' Association (SDA) agreed to change the General Retail Industry Award (GRIA) so that part-time employees can take on extra hours at ordinary rates provided they:

•  Work a minimum of nine hours a week; and
•  Make a written agreement

The changes would enable arbitration to deal with disputes and measures to protect against a sustained increase in hours.

Other employer organisations vocally opposed these changes; perplexing given the flexibilities they would provide. But it is different from the measure in the Bill and the option of arbitration to resolve disputes may not have appealed to some.

The matter is still on foot, with the FWC noting there are uncertainties about the way the current rules operate (interesting given how much scrutiny there has been of these clauses in recent times). The FWC expressed a ‘provisional’ view that there may be merit in varying the award to enable greater flexibility. There are more conferences to come on this after Easter with a robust timeline in place.

I certainly hope the FWC is able to broker change in this area, especially in sectors impacted by COVID-19 Lockdowns as they look to recover and increase staff hours as the economy returns.

In Deloitte’s compliance work I see again and again a failure to properly systematise rules around part-time work pattern changes.

Businesses are remediating part-time workers who voluntarily changed shifts through accepting extra hours and on many occasions overtime was not applied. Sometimes its unclear whether employees changed or swapped shifts off their own accord because the reasons have not been documented.

The rules around part-timers flexing up or changing shifts are so rigid that the costs of complying and the risks of unintentionally not complying may together operate as a disincentive to hiring workers on a part-time basis

I can’t help but think that those who do understand and apply the rules may prefer casual workers, especially if their workforce needs surge capacity. This may be more appealing still now there is greater clarity about casual work.

At a time where people want flexible but secure work, and under-utilisation in the labour market is a key threat to our recovery, now does seem like a good time to be ensuring the settings are right here.

When the Government introduced its IR Bill, the Minister also formally asked the President of the FWC to review several modern awards covering sectors hardest hit by the pandemic to make changes to support economic recovery.

In the absence of legislative reform, our eyes turn back to the FWC and this process. We can only hope that the good will that went into the consultations in Canberra can be resurrected before the tribunal to produce industry focused change.