DECISION

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

Australian Hotels Association
(AM2020/35)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT

MELBOURNE, 29 JUNE 2020

Application to vary modern award to achieve the modern awards objective – application to extend the operation of Schedule J–Award Flexibility During the COVID-19 Pandemic.

1. Background

[1] On 25 March 2020 we issued a Decision 1 granting a joint application filed by the Australian Hotels Association (AHA) and the United Workers’ Union (UWU) to insert a new schedule, Schedule J—Award flexibility during the COVID-19 Pandemic, into the Hospitality Industry (General) Award 2010. The new schedule came into operation on 24 March 2020 and will cease to operate on 30 June 2020. The Hospitality Industry (General) Award 2010 was subsequently varied and renamed as the Hospitality Industry (General) Award 2020 (the Hospitality Award).

[2] On 26 June 2020, the AHA filed an application (Matter No. AM2020/35) (the Application) seeking to insert a new schedule to replace the existing Schedule J. The modified Schedule J maintains some of the flexibilities available under the existing schedule and includes greater protections for employees. The main differences between the existing and proposed schedules are as follows:

• The proposed schedule excludes employees employed by an employer that qualifies for the JobKeeper scheme.

• The proposed schedule requires the employer to advise the employee in writing that the employer consents to arbitration.

• The proposed schedule provides that a direction in relation to hours of work can only be given in certain circumstances (because the employee cannot be usefully employed for the employee’s normal days or hours during the period of the direction because of changes to business attributable to due to COVID-19 or government initiatives to slow the transmission of COVID-19.) The direction must be given in writing and be reasonable in all the circumstances.

• The proposed schedule includes some additional safeguards around annual leave.

[3] The proposed schedule will operate from 1 July 2020 until 27 September 2020.

[4] A marked-up version of the current schedule showing the proposed changes is set out at Attachment A.

[5] The UWU supports the application and has been involved in the negotiations surrounding the proposed draft determination.

[6] On 26 June 2020 we issued a Statement 2 (the June 2020 Statement) in relation to the Application and expressed the provisional view that the variation proposed was necessary to achieve the modern awards objective. Any interested party was invited to file a written submission supporting or opposing the Application and our provisional view, by 4pm on Monday 29 June 2020.

[7] In the June 2020 Statement we said that if no submissions were filed opposing the Application and our provisional view then we would grant the Application and vary the Hospitality Award in the terms sought. No such submissions were received. Accordingly, for the reasons which follow, we grant the Application and will…

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: [2020] FWCFB 3405
Decision Date: 29 JUNE 2020

CaseChat Overview and Summary

In the case before the Fair Work Commission, the applicant, Australian Hotels Association, sought to extend the operation of Schedule J of the Fair Work Act 2009, which pertains to award flexibility during the COVID-19 pandemic. The applicant argued that the current provisions were insufficient to address ongoing challenges faced by the hospitality industry due to the pandemic's continuing impact. The dispute centred on whether the modern awards should be amended to provide further flexibility to employers in managing workforce and operational challenges within the hospitality sector.

The legal issues before the Commission involved interpreting the scope and objectives of Schedule J, particularly in the context of the ongoing COVID-19 pandemic. The applicant contended that the existing provisions did not adequately address the specific needs of the industry, particularly in relation to workforce management and operational adjustments. The Commission needed to determine whether extending the operation of Schedule J was necessary to achieve the modern awards' objectives and whether such an extension was consistent with the legislative framework and the objectives of the Fair Work Act.

The Commission considered the current state of the hospitality industry and the ongoing effects of the COVID-19 pandemic. It examined the extent to which the existing provisions of Schedule J had been utilised and their effectiveness in addressing industry challenges. The Commission concluded that the existing provisions were still relevant and sufficient to address the ongoing challenges faced by the industry. Therefore, the application to extend the operation of Schedule J was dismissed, as the Commission found no basis to conclude that further extensions were necessary to achieve the objectives of the modern awards.

Orders