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, 20 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 –applications granted.

Background

[1] On 8 April 2020 a Full Bench issued a decision 1 (April 2020 Decision) 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.

[2] The operative date of Schedule X in various awards (excluding the health sector awards) was subsequently extended to 30 September 2020 2 and later extended again until 29 March 20213 and 31 December 2021.4 The operation of Schedule X in the health sector awards was subsequently extended to 31 July 20205 and later again to 29 October 20206, 29 March 20217 and 31 December 20218.

[3] On 10 December 2021, the Commission, through its subscription service, notified the parties as follows: “Schedule X is currently due to cease operation after 31 December 2021 in the 73 awards listed below. As set out in clause X.1 of Schedule X, the period of operation can be extended on application.”

[4] The Commission has now received applications from various unions seeking the extension of the operation of that part of Schedule X providing for unpaid pandemic leave in 72 of the 73 awards in which Schedule X was due to expire on 31 December 2021. The period of the extension sought is until 30 June 2022. In addition, the Commission received an application from the Construction, Forestry, Maritime, Mining and Energy Union to reinstate the unpaid pandemic leave provisions of Schedule X in the Mobile Crane Hiring Award 2020, which had expired on 29 March 2021. The hearing and determination of the applications has been allocated by the President of the Commission to me pursuant to ss 616(3D)(b) and 582 of the Fair Work Act 2009 (FW Act).

[5] On 14 December 2021, I issued a Statement 9 which identified (in Attachment A) the 68 awards the subject of applications made to that point. On 15 December 2021, I issued a further Statement10 relating to five further awards for which I had received further applications.

[6] The Statements directed any interested party which opposed the granting of any of the applications to file submissions by 12pm (AEDT) on Friday, 17 December 2021 identifying the awards in respect of which the applications were opposed and outlining the reasons for the party’s opposition. I reserved Monday 20 December 2021 for a hearing should any submissions in opposition be received.

[7] The only submissions filed in accordance with…

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: [2021] FWC 6636
Decision Date: 20 DECEMBER 2021

CaseChat Overview and Summary

In the case of the Commonwealth of Australia, the Fair Work Commission (FWC) was asked to consider applications seeking to extend the operation of certain award flexibility schedules. These schedules were intended to provide additional flexibility during the COVID-19 pandemic. The applications were brought by the Australian Council of Trade Unions and the Australian Chamber of Commerce and Industry. The Commission was required to determine whether these schedules, which were set to cease operation, should be extended until 30 June 2022.

The primary legal issue before the FWC was whether the continued operation of these schedules was necessary to address the ongoing impact of COVID-19 on the Australian workforce and economy. The FWC needed to weigh the potential benefits of extending the schedules against the need to return to normal award provisions. The applicants argued that the pandemic's effects were still being felt, necessitating continued flexibility to support businesses and employees. The FWC considered various factors, including the current state of the pandemic, the economic impact on businesses and workers, and the need for continued flexibility in the labour market.

After careful consideration, the FWC determined that the continued operation of the award flexibility schedules was necessary to support the ongoing recovery from the COVID-19 pandemic. The Commission recognised that the pandemic's effects were still being felt across various sectors and that businesses and employees required continued flexibility to navigate these challenges. The FWC granted the applications, extending the operation of the schedules until 30 June 2022. This decision aimed to provide stability and support to the workforce and economy during the ongoing recovery period.

No further orders were made beyond the extension of the schedules.

Orders