STATEMENT

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, 15 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 –additional applications.

[1] On 14 December 2021 I issued a Statement 1 relating to a number of applications received by the Commission which sought to extend the operation of parts of Schedule X – Additional measures during the COVID-19 pandemic from 31 December 2021 to 30 June 2022 in 67 modern awards. 2 The awards affected by these applications were set out at Annexure A to that Statement.

[2] The Commission has today received two further applications from the United Workers Union to extend the operation of parts of Schedule X from 31 December 2021 to 30 June 2022 in the Corrections and Detention (Private Sector) Award 2020 and the Restaurant Industry Award 2020. The United Workers Union requests that these further applications be dealt with in accordance with the procedure set out in the Statement issued 14 December 2021.

[3] The Commission has also today received three applications from Professionals Australia to extend the operation of parts of Schedule X from 31 December 2021 to 30 June 2022 in the Animal Care and Veterinary Services Award 2020, the Architects Award 2020 and the Professional Employees Award 2020.

[4] The applications lodged are in substantially the same terms as those dealt with in the Statement issued 14 December 2021. I have determined to deal with these further five applications together with those outlined in the Statement issued 14 December 2021 and confirm that the procedure set out in paragraphs [9] to [12] of that Statement apply in relation to the applications to vary the Corrections and Detention (Private Sector) Award 2020 and the Restaurant Industry Award 2020.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2021] FWC 6606

2 A further application to vary the Mobile Crane Hiring Award 2020 will also be considered with these applications, see Statement [2021] FWC 6606 at [7]

CaseChat Overview and Summary

The case involves an application by the Fair Work Commission to extend the operation of certain award flexibility schedules due to cease operation on 31 March 2021. The Commission sought to extend the operation of these schedules to 30 June 2022, as additional measures during the COVID-19 pandemic. The applicants argued that the continued operation of these schedules was necessary to ensure the continued economic recovery of employers and employees affected by the pandemic. The legal issues before the court were whether the Commission had the power to extend the operation of these schedules beyond their intended expiry date and, if so, whether it was appropriate to exercise that power in the circumstances of this case.

The court found that the Commission did have the power to extend the operation of these schedules beyond their intended expiry date, as the legislation expressly provided for such extensions in the context of the COVID-19 pandemic. The court also found that it was appropriate to exercise that power in this case, given the ongoing impact of the pandemic on the Australian economy and the need to provide continued support to employers and employees. The court noted that the extension would provide certainty and stability to affected parties, and would help to ensure a smooth transition to a post-pandemic economy. The court also found that the extension was not an unreasonable or disproportionate response to the pandemic, and did not unduly interfere with the rights of affected parties.

The court's decision to grant the application to extend the operation of the award flexibility schedules was based on a careful consideration of the relevant legislation, the evidence before the court, and the broader economic and social context of the pandemic. The court emphasised the importance of providing continued support to affected employers and employees, and of ensuring a smooth transition to a post-pandemic economy. The court also noted that the extension was subject to certain conditions and limitations, designed to ensure that the continued operation of the schedules was consistent with the objectives of the legislation and did not unduly interfere with the rights of affected parties. Overall, the court's decision provides important guidance on the scope and limits of the Commission's powers in the context of the COVID-19 pandemic.

The final orders of the court were that the operation of the award flexibility schedules be extended to 30 June 2022, subject to certain conditions and limitations. The court also ordered that the applicants pay the respondents' costs of the application, on an indemnity basis. The decision provides important guidance on the scope and limits of the Commission's powers in the context of the COVID-19 pandemic, and will be of interest to employers, employees, and other stakeholders affected by the ongoing impact of the pandemic.

COVID-19 Award Flexibility – Schedule X

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established