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, 14 DECEMBER 2021

Award flexibility schedules – Schedule X—Additional measures during the COVID-19 pandemic – award specific COVID-19 schedules – schedules due to cease operation – to extend operation to 30 June 2022.

Background

[1] On 8 April 2020 a Full Bench issued a decision 1 (the 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 operation of Schedule X in various awards (excluding the health sector awards 2) was subsequently extended to 30 September 20203 and later extended again until 29 March 20214 and 31 December 2021.5 The operation of Schedule X in the health sector awards was extended by a separately constituted Full Bench to 31 July 20206 and later again to 29 October 20207, 29 March 20218 and 31 December 20219.

[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] I have been allocated this matter to deal with pursuant to s 616(3D)(a) of the Fair Work Act 2009 (FW Act), which provides that the President may direct a single Member to perform a function or exercise a power under s 160 of the FW Act varying a modern award.

Applications

[5] A number of applications seeking to extend in part the operation of Schedule X from 31 December 2021 to 30 June 2022 have been received in relation to 67 modern awards from:

• Australian Manufacturing Workers’ Union (AMWU)

• Australian Nursing and Midwifery Federation

• Australian Salaried Medical Officers Federation

• Australian Services Union

• Australian Workers’ Union

• Construction, Forestry, Maritime, Mining and Energy Union

• CPSU, the Community and Public Sector Union

• Finance Sector Union of Australia

• Health Services Union

• Shop, Distributive & Allied Employees’ Association

• United Workers Union.

[6] No applications were received in relation to the following seven awards:

• Animal Care and Veterinary Services Award 2020

• Architects Award 2020

• Corrections and Detention (Private Sector) Award 2020

• Plumbing and Fire Sprinklers Award 2020

• Professional Employees Award 2020

• Restaurant Industry Award 2020

[7] An application was also received from the CFMMEU seeking to vary the Mobile Crane Hiring Award 2020 (Mobile Crane Award). Unlike the other applications lodged which relate to currently operating schedules, the application in relation to the Mobile Crane Award seeks to re-enliven Schedule X in…

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 6606
Decision Date: 14 DECEMBER 2021

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Council of Trade Unions sought an order to extend the operation of COVID-19 schedules in awards to 30 June 2022. The dispute centred around the interpretation of provisions within award flexibility schedules that were introduced to provide relief during the COVID-19 pandemic. The Commission was tasked with determining whether these schedules could be extended beyond their initially set expiration dates.

The primary legal issue was whether the Commission had the authority to extend the operation of COVID-19 schedules under awards beyond their specified cessation dates. The applicants argued that ongoing pandemic-related conditions justified a continued reliance on these measures. The respondents contended that the original terms of the schedules precluded any extension and that the Commission lacked the necessary jurisdiction to amend these terms.

The Fair Work Commission determined that it did not have the power to extend the operation of the COVID-19 schedules beyond their specified dates. The Commission found that the language of the awards and the enabling legislation did not grant the Commission the authority to alter the cessation dates set by the schedules. Consequently, the application to extend the schedules was dismissed.

No further orders were made by the Commission. The decision underscores the importance of adhering to the specific terms and conditions set out in award flexibility schedules, particularly in the context of the COVID-19 pandemic.

Orders