Application to vary the Clerks – Private Sector Award 2020

In the case, the Australian Council of Trade Unions and the Australian Retailers Association applied to the Fair Work Commission to vary the Clerks – Private Sector Award 2020. The applicants sought to extend the operation of Schedule I of the Award, which sets out penalty rates for retail workers, to allow for more flexible work arrangements in response to the COVID-19 pandemic. The application aimed to achieve the modern award's objective of providing for fair and reasonable terms and conditions of employment while adapting to the unprecedented challenges posed by the pandemic.

The central legal issue before the Commission was whether the proposed variation to the Award was necessary and appropriate to achieve the modern award's objectives. The applicants argued that the pandemic had created an exceptional circumstance that warranted flexibility in work arrangements to ensure business continuity and protect workers' health and safety. The Commission had to consider the modern award's objectives, the nature of the pandemic, and the impact of the proposed variation on employees and employers.

The Fair Work Commission granted the application, recognising the extraordinary circumstances created by the COVID-19 pandemic. The Commission found that the proposed variation was necessary and appropriate to achieve the modern award's objectives of providing for fair and reasonable terms and conditions of employment. The Commission noted that the pandemic had necessitated significant changes in work arrangements to protect public health and ensure business continuity. The Commission emphasised that the variation was temporary and would only apply during the pandemic, ensuring that the modern award's objectives would be achieved once the exceptional circumstances ceased. The Commission also considered the need for flexibility in work arrangements to protect workers' health and safety, particularly in the retail sector, where face-to-face interactions were unavoidable.

The Fair Work Commission ordered that the Clerks – Private Sector Award 2020 be varied to extend the operation of Schedule I to allow for more flexible work arrangements for retail workers during the COVID-19 pandemic. The variation permitted employers and employees to agree to changes in work arrangements, including variations to hours of work, days of work, and penalty rates, subject to certain conditions and protections. The variation was effective from the date of the Commission's decision and would remain in force until the end of the declared COVID-19 public health emergency or until otherwise varied or terminated by the Commission.