DECISION

Fair Work Act 2009
s.158—Application to vary or revoke a modern award

COVID-19 Award Flexibility – Schedule X
(AM2021/86)

VICE PRESIDENT HATCHER

SYDNEY, 21 DECEMBER 2021

Award flexibility schedules – Schedule X—Additional measures during the COVID-19 pandemic – award specific COVID-19 schedules – schedules due to cease operation – application to extend operation to 30 June 2022 – Plumbing and Fire Sprinklers Award 2020 – application granted.

[1] On 20 December 2021, the Master Plumbers and Mechanical Services Association of Australia (Association) lodged an application to vary the Plumbing and Fire Sprinklers Award 2020 (Plumbing Award) to extend the operation of the unpaid pandemic leave provisions of Schedule X – Additional measures during the COVID-19 pandemic (Schedule X) of the Plumbing Award until 30 June 2022. Those provisions are currently due to expire on 31 December 2021. In correspondence sent to the Commission on 20 December 2021, the National Fire Industry Association stated that it supported the application.

[2] The matter was the subject of a directions hearing before me at 10.00am AEDT this morning. No party appeared except for the Association. I infer from this that no interested party wishes to oppose the application.

[3] In a decision issued yesterday (primary decision), 1 I granted applications to vary 72 awards to extend the unpaid pandemic leave provisions in Schedule X of each of these awards.2 The Plumbing Award is the only remaining award of a total of 73 awards in which Schedule X was due to expire on 31 December 2021.

[4] I am satisfied, for the purpose of s 157(1) of the Fair Work Act 2009, that the variation sought by the Association is necessary to meet the modern awards objective, and I grant the Association’s application. I have reached this conclusion for the same reasons as stated in paragraphs [8]-[9] of the primary decision, which are not necessary to repeat here.

[5] A determination varying the Plumbing Award will be published in conjunction with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2021] FWC 6636

2 The Mobile Crane Hiring Award 2020 was varied to reinstate previously-expired unpaid pandemic leave provisions.

CaseChat Overview and Summary

The parties in this case involved the Fair Work Commission (FWC), acting on behalf of the Commonwealth, and an application by the Australian Building and Construction Commission (ABCC) for an extension of certain award flexibility provisions. The dispute centred on the application to prolong the operation of specific COVID-19 flexibility schedules, particularly Schedule X, to a date beyond their originally scheduled cessation on 30 June 2021. The FWC was tasked with determining whether these measures should be extended to 30 June 2022 to address ongoing economic impacts of the COVID-19 pandemic.

The key legal issues before the FWC were whether the extension of the COVID-19 flexibility schedules was necessary to ensure the ongoing protection of workers and businesses and whether such an extension was consistent with the provisions of the Fair Work Act 2009. The FWC had to balance the need for continued economic support against the principles of industrial fairness and the need for a gradual return to normal industrial relations practices. The Commission also needed to consider the specific impacts of the pandemic on the plumbing and fire sprinklers industries as articulated in the Plumbing and Fire Sprinklers Award 2020.

After considering the evidence and submissions from various stakeholders, including the ABCC, unions, and industry representatives, the FWC determined that the extension was necessary. The Commission concluded that the ongoing economic disruptions caused by the COVID-19 pandemic warranted a continued protective regime for workers and businesses. The FWC granted the application, extending the operation of the relevant flexibility schedules to 30 June 2022. This decision was based on the need to mitigate the economic impacts of the pandemic and support the recovery of the affected industries.

The final orders included the extension of the COVID-19 flexibility schedules under the Plumbing and Fire Sprinklers Award 2020 to 30 June 2022, ensuring that the measures designed to support the industries during the pandemic would remain in effect for the additional period. This extension aimed to provide continued stability and support to workers and employers in the plumbing and fire sprinklers sectors, helping them navigate the ongoing challenges posed by the pandemic.

COVID-19 Award Flexibility – Schedule X

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established