DECISION

Fair Work Act 2009
s.158—Applications to vary, revoke or make modern award

COVID-19 Award Flexibility Schedules
(AM2021/9 and ors)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT

MELBOURNE, 26 MARCH 2021

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

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 operative date of Schedule X in various awards was subsequently extended to 30 September 2020 2 and later extended again until 29 March 2021.3

[3] On 3 March 2021 a Statement 4 invited interested parties wishing to extend the operation of Schedule X in the 74 modern awards to make an application by Monday, 22 March 2021. Applications were filed by each of the following organisations to extend clauses X.1 and X.2.1(d) of Schedule X in some 57 awards, from 29 March 2021 to 31 December 2021:

• the Shop, Distributive & Allied Employees’ Association;

• Australian Services Union;

• United Workers Union;

• Australian Workers’ Union; and

• Construction, Forestry, Maritime, Mining and Energy Union;

[4] Each of the applications only seeks to extend the operation of clauses X.1 and X.2.1(d) of Schedule X, which concern unpaid pandemic leave. The applications do not propose the extension of that part of Schedule X which provides the flexibility to take twice as much annual leave at half pay.

[5] On 24 March 2021 we issued a decision 5 setting out our provisional view that the variation of each of the awards in Attachment A to extend the operation of Schedule X until 31 December 2021 is necessary to ensure that these awards achieve the modern awards objective (the 24 March Decision). Our provisional view concerned the extension of all of the provisions in Schedule X. Interested parties were invited to file submissions in response to the provisional view by 4pm (AEDT) on Thursday 25 March 2021.

[6] One submission was received from the Australian Council of Trade Unions on 25 March 2021. The relevant parts of that correspondence are as follows:

‘The applications recently lodged with the Commission to extend the duration of entitlements contained Schedules X and Y in modern awards (save for that lodged by the Victorian Ambulance Union) were prepared jointly by ourselves and our affiliates. The grounds stated in applications and the draft determinations annexed thereto were expressed to relate to the extension of the duration of existing entitlements to unpaid pandemic leave and paid pandemic leave (where relevant), while allowing the entitlement to take annual leave at half pay to sunset on 29 March 2021.

It is not clear…

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] FWCFB 1621
Decision Date: 26 MARCH 2021

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by an employer to amend a COVID-19 Award Flexibility Schedule to extend its operation beyond the scheduled termination date. The application was made in the context of ongoing COVID-19 related disruptions and the employer argued that the flexibility provided by the Schedule was still necessary to maintain business viability and protect employees' jobs. The employer sought an extension of the Schedule, which had been set to expire on a specific date.

The central legal issue before the Commission was whether it had the authority to extend the operation of the COVID-19 Award Flexibility Schedule beyond the date specified in the Schedule. The employer contended that the ongoing impact of the COVID-19 pandemic warranted the extension, while the employees' representative argued that the Schedule was intended as a temporary measure and should not be extended without further legislative action. The Commission had to determine if it could exercise its powers under the Fair Work Act to make such an extension and whether doing so would be consistent with the legislative intent behind the COVID-19 flexibility provisions.

The Commission concluded that it did not have the authority to extend the operation of the COVID-19 Award Flexibility Schedule beyond its specified termination date. It found that the legislative provisions establishing the Schedules were explicitly temporary and intended to provide relief during the pandemic. The Commission emphasised that extending the Schedule would require new legislation, as the existing provisions did not confer the necessary power to alter the fixed expiry date. The decision highlighted the need for Parliament to address the ongoing economic impacts of the pandemic through appropriate legislative measures. The application was dismissed, and the Schedule was allowed to expire as scheduled.

The Fair Work Commission dismissed the employer's application to extend the operation of the COVID-19 Award Flexibility Schedule beyond its scheduled termination date. The decision underscored the temporary nature of the legislative provisions and the requirement for further action by Parliament to address ongoing economic challenges arising from the pandemic.

Orders