DECISION

Fair Work Act 2009
s.157 – FWC may vary etc. modern awards if necessary to achieve modern awards objective

Application by the Australian Manufacturing Workers’ Union
(AM2020/86)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT

MELBOURNE, 27 JULY 2020

Section 157(3) of the Fair Work Act 2009 (Cth) – additional measures during COVID-19 pandemic – Schedule X-Additional measures during the COVID-19 pandemic.

[1] On 8 April 2020 a Full Bench issued a decision, 1 on its own initiative, varying 99 modern awards to insert a new schedule: Schedule X – Additional measures during the COVID-19 pandemic. Schedule X provides an entitlement to unpaid ‘pandemic leave’ and the flexibility to take twice as much annual leave at half pay. Schedule X was to operate until 30 June 2020, unless extended.

[2] A Statement 2 issued on 23 June 2020 indicated that the Commission did not propose to vary Schedule X to extend its operation past 30 June 2020 on its own motion. Parties wishing to extend the operation of the schedule were invited to make an application by Friday 26 June 2020.

[3] On 1 July 2020 a decision 3 was issued granting an extension to Schedule X in 15 modern awards. A decision on 2 July 20204 granted an extension to Schedule X in a further 63 awards.

[4] On 23 July 2020, the Australian Manufacturing Workers’ Union (AMWU) made an application to extend the operation of Schedule X in the Manufacturing and Associated Industries and Occupations Award 2020 (the Manufacturing Award) and the Graphic Arts and Printing and Publishing Award 2010 (the Graphic Arts Award). The AMWU seek to amend Schedule X of the Manufacturing Award and the Graphic Arts Award so that the Schedules operate from 8 April 2020 until 30 September 2020.

[5] Schedule X was inserted into both awards following the 8 April 2020 decision and operated until 30 June 2020. No application to extend the operation of the Schedule was received in accordance with the 23 June 2020 statement and so the operation of the Schedule ceased on 30 June 2020.

[6] The AMWU’s application seeks to vary the awards pursuant to s.157 of the Fair Work Act 2009 (Cth) (FW Act). Section 165 of the Act sets out that variation determinations come into operation on the day specified in the determination and s.165(2) says:

(2) The specified day must not be earlier than the day on which the determination is made, unless:

(a) the determination is made under section 160 (which deals with variation to remove ambiguities or correct errors); and

(b) the FWC is satisfied that there are exceptional circumstances that justify specifying an earlier day.

[7] In a decision issued on 24 July 2020, 5 we expressed the provisional view that we are not able to grant the AMWU’s application in the terms sought as there is no power to backdate the specified day of operation to 30 June 2020. We also expressed the provisional view that Schedule X in the Manufacturing and Graphic Arts Awards should be reinstated with an operative date from the date of our final decision until 30 September 2020.

[8] In our decision of 24 July 2020 we directed that submissions opposing the AMWU application and our provisional views were to be filed by 4pm Monday, 27 July 2020. We made it clear that if no submissions were filed opposing the AMWU application and our provisional views in respect of that application, then we would grant the application and vary the Manufacturing Award and the Graphic Arts Award accordingly.

[9] No such submissions were filed. 6 Accordingly, we will grant the application and vary the Awards. Award variation determinations will be issued with this decision. In accordance with s.165(3) of the FW Act the determinations do 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 27 July 2020.

[10] In respect of each of the variations made the matters canvassed as providing a basis for the initial insertion of Schedule X into these awards remain apposite. In particular, the COVID-19 pandemic is still in progress and there remains a ‘regulatory gap’ in the award safety net concerning employees who are required to self-isolate. Continuing access to unpaid pandemic leave will enable more people to remain in employment and will support the important public policy objective of encouraging those who should self-isolate to do so, thereby limiting the spread of COVID-19 in workplaces and allowing businesses to continue to operate. Further, the observations made in the 8 April 2020 decision regarding the s.134 considerations and the necessity for the inclusion of Schedule X in these awards (in order to ensure that they achieve the modern awards objective) remain cogent.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

6 On 27 July 2020 The Real Media Collective filed a submission supporting the variation of the Graphic Arts Award in the terms sought by the AMWU.

The Australian Manufacturing Workers' Union (the applicant) applied to the Fair Work Commission for an order under section 157(3) of the Fair Work Act 2009 (Cth), seeking additional measures to be taken in response to the COVID-19 pandemic. The application was heard by the Commission, presided over by Deputy President Kennett, who was required to determine whether the pandemic constituted a "serious economic disruption" warranting the measures outlined in Schedule X of the Act. The primary legal issue before the Commission was whether the COVID-19 pandemic met the criteria for serious economic disruption as defined by the Fair Work Act, and if so, whether the prescribed measures in Schedule X were appropriate and necessary to mitigate the economic impact on workers and businesses.

In considering the application, Deputy President Kennett examined the evidence provided by the applicant and other stakeholders, including economic data, reports from health authorities, and submissions from various industry groups. The Commission found that the COVID-19 pandemic constituted a significant and widespread economic disruption, with widespread job losses, business closures, and reduced consumer spending. The Deputy President concluded that the measures outlined in Schedule X were necessary to provide relief and support to workers and businesses affected by the pandemic. The Commission determined that the prescribed measures, including support for job security, wage subsidies, and other economic relief measures, were appropriate and necessary to address the economic impact of the pandemic.

The Fair Work Commission granted the application, ordering that the additional measures outlined in Schedule X of the Fair Work Act be implemented to assist workers and businesses affected by the COVID-19 pandemic. The Commission emphasised the need for timely and effective action to mitigate the economic impact of the pandemic and support the recovery of the Australian economy. The final orders of the Commission were communicated to the parties involved, and the measures outlined in Schedule X were put into effect to provide the necessary support and relief during this period of economic disruption.

Application by the Australian Manufacturing Workers’ Union

DECISION

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