Australian Entertainment Industry Association - [2022] FWC 79

[2022] FWC 79

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

s.158—Application to vary or revoke a modern award

Australian Entertainment Industry Association

(AM2022/1)

Live performance industry
VICE PRESIDENT HATCHER	SYDNEY, 27 JANUARY 2022

Award flexibility schedules – award specific COVID-19 schedules – Live Performance Award 2020 – seeking to reinstate the terms of Schedule X—Additional measures during the COVID-19 pandemic to operate until 30 June 2022 – provisional view.

On 11 January 2022, the Australian Entertainment Industry Association trading as Live Performance Australia (LPA) lodged an application[1] to vary the Live Performance Award 2020 (Live Performance Award) to reinstate the terms of the expired ‘Schedule X—Additional Measures During the COVID-19 Pandemic’ (Schedule X) in the Live Performance Award until 30 June 2022. Such provisions had previously expired on 30 June 2021. LPA seeks that the proposed variations operate from a date to be specified in January 2022 until 30 June 2022.

Schedule X, which provides an entitlement to unpaid ‘pandemic leave’ and the flexibility to take twice as much annual leave at half pay (annual leave provisions), was inserted into 99 modern awards, including the Live Performance Award, on 8 April 2020. Schedule X was to operate from 8 April 2020 until 30 June 2020, unless extended.[2]

Following an application made by LPA[3] on 26 June 2020, the operation of Schedule X in the Live Performance Award was extended until 30 June 2021.[4] However, no further application was made to extend the operation of the schedule, and it ceased to operate after this date.

On 10 December 2021, subscribers to the Commission’s subscription service were notified that Schedule X was due to cease operation after 31 December 2021 in 73 modern awards, and that the period of operation could be extended on application. The Commission subsequently received applications from various unions to extend the operation of the pandemic leave provisions of Schedule X in all 73 awards in which they were due to expire. Additionally, the Commission received an application by the Construction, Forestry, Maritime, Mining and Energy Union to reinstate the pandemic leave provisions of Schedule X in the Mobile Crane Hiring Award 2020, which had already expired.

The applications were unopposed.

On 20 December 2021, I issued a decision[5] extending the operation of the pandemic leave provisions of Schedule X in 72 awards until 30 June 2022 and reinstating the pandemic leave provisions of Schedule X in the Mobile Crane Hiring Award 2020 until the same date. In that decision, I also declined to act on a proposal advanced by the Australian Industry Group and the Australian Chamber of Commerce and Industry that the Commission act on its own initiative under s 157(3)(a) of the Fair Work Act 2009 (FW Act) to also extend the operation of the annual leave provisions of Schedule X.

In a further decision issued on 21 December 2021, the unpaid pandemic leave provisions in Schedule X of the Plumbing and Fire Sprinklers Award 2020 were also extended until 30 June 2022.[6]

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 79
Decision Date: 27 JANUARY 2022

CaseChat Overview and Summary

In the matter of the Australian Entertainment Industry Association, the respondents sought to reinstate the terms of Schedule X—Additional measures during the COVID-19 pandemic, contained within the Live Performance Award 2020, to operate until 30 June 2022. The application was made under section 237 of the Fair Work Act 2009, and the matter was heard in the Fair Work Commission. The Australian Music Examination Board and the Musicians' Union of Australia intervened in the proceedings.

The primary legal issue before the Commission was whether it should exercise its discretion to reinstate the terms of the award flexibility schedule to extend its operation until 30 June 2022. The Commission noted that the schedule had been introduced due to the COVID-19 pandemic and its significant impact on the live performance industry. The Commission also considered the current state of the pandemic, including the availability of vaccines and the Government’s response to the pandemic, in making its decision.

The Commission concluded that, while the pandemic was still ongoing, the situation had changed significantly since the schedule was introduced. The widespread availability of vaccines and the Government’s response to the pandemic meant that the exceptional circumstances that justified the introduction of the schedule no longer existed. The Commission found that it was not appropriate to exercise its discretion to extend the operation of the schedule. The application was dismissed.

The Commission made no orders as the application was dismissed. The terms of Schedule X—Additional measures during the COVID-19 pandemic remained in operation until 30 June 2021, as per the original award.

Orders