In welcome news for retail employers, the Fair Work Commission has resolved a drafting error concerning minimum daily engagements for casual employees under the General Retail Industry Award 2020 (Retail Award).
During the plain language redraft of the Retail Award in October 2020, the description of the minimum daily engagement for casual employees was changed to the following:
“An employer must pay a casual employee for a minimum of 3 hours’ work, or 1.5 hours’ work in the circumstances set out in clause 11.3, on each occasion on which the casual employee is rostered to attend work even if the employee works for a shorter time.”
This was obviously of concern to employers due to the marked change from a ‘minimum daily engagement’ to a ‘minimum daily payment’. Under the Retail Award, employers had previously been under an obligation to roster employees for a three-hour minimum shift. This revised clause appeared to change this obligation to an obligation to make a minimum payment of the equivalent of three hours’ work, irrespective of whether three hours of work was performed.
On 22 November 2021, the Fair Work Commission identified that the above change was an error of drafting and revised the clause as follows:
“The minimum daily engagement of a casual employee is 3 hours, or 1.5 hours’ in the circumstances set out in clause 11.3.”
This revision took effect on 6 December 2021 and restored the previous language of ‘minimum daily engagement’.
It should be noted that this correction has not resolved the broader uncertainty surrounding the treatment of casual employees that leave work, on their own accord, prior to working three hours.
Where a casual employee, feeling unwell or for any other reason, chooses to leave a shift before three hours has expired, the employer will have arguably satisfied the minimum daily engagement so long as they have rostered the employee for three hours or more and provided the employee the opportunity to work that shift. In this case, the employer is only required to make payment for time worked because the employee, of their own accord, has not completed their minimum daily engagement.
For the removal of doubt, a casual employee will still be entitled to payment equivalent to three hours of work where their shift ends prematurely at the employer’s initiative. To illustrate, if a retail outlet is experiencing quieter than usual afternoon trade, the employer cannot unilaterally decide to send a casual employee home without paying them for the three hours minimum daily engagement.
Should you have any questions in respect of this change to the Retail Award, please contact the National Retail Association’s Workplace Relations Hotline on 1800 738 245.