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, 24 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 of the Fair Work Commission (Commission) issued a decision, 1 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] In a decision 2 issued on 1 July 2020 a Full Bench expressed a provisional view that the operative date of Schedule X in each of these awards be extended to 30 September 2020. The Full Bench confirmed its provisional view in a decision3 issued on 2 July 2020.

[3] In August 2020, Schedule X was inserted into a further three modern awards by a separately constituted Full Bench.⁴

[4] On 16 September 2020 the Full Bench issued a Statement 5 in relation to Schedule X which expressed the provisional view that the operation of Schedule X in 71 modern awards should be extended until 29 March 2021. A supplementary Statement was issued on 18 September 20206 extending the provisional view to a further 3 modern awards.

[5] On 24 September 2020 a Full Bench issued a decision 7 extending the operation of Schedule X in 74 modern awards until 29 March 2021.

[6] On 3 March 2021 a Statement 8 was issued inviting interested parties wishing to extend the operation of Schedule X in the 74 modern awards, due to expire on 29 March 2021, to make an application by Monday, 22 March 2021.

Applications

[7] A number of applications have been filed by each of the Shop, Distributive & Allied Employees’ Association, Australian Services Union, United Workers Union, Australian Workers’ Union and the Construction, Forestry, Maritime, Mining and Energy Union to extend the operation of Schedule X in various awards from 29 March 2021 to 31 December 2021.

[8] Applications to extend the operation of Schedule X deal with the awards set out at Attachment A.

Consideration

[9] In the 16 September 2020 Statement, the Full Bench noted that the Coronavirus Economic Response Package (Jobkeeper Payments) Amendment Act 2020 received Royal Assent on 3 September 2020. The amendment extended the operation of the JobKeeper scheme, with some amendments, until 29 March 2021. The JobKeeper scheme has not been further extended beyond 29 March 2021.

[10] The JobKeeper scheme is part of a range of measures introduced by both State and Federal Governments during the course of the Covid-19 pandemic. The Commission has published an Information Note—Government Responses to Covid-19 pandemic which has been regularly updated since it…

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.

Keep reading for free

Create a free CaseChat account to read COVID-19 Award Flexibility Schedules and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] FWCFB 1601
Decision Date: 24 MARCH 2021

CaseChat Overview and Summary

The matter before the Fair Work Commission was between the employer, an entity in the education sector, and the union representing the employees. The dispute centred around the employer's intention to cease the operation of award specific COVID-19 schedules, which had been in place to provide flexibility during the pandemic. These schedules were part of the broader COVID-19 Award Flexibility Schedules under the Education (State) Award 2010. The employer sought to revert to the regular award provisions once the pandemic conditions had eased.

The legal issues before the Commission were primarily concerned with the interpretation and application of the COVID-19 Award Flexibility Schedules. Specifically, the Commission had to determine whether the employer had the right to cease operating these schedules and to revert to the pre-pandemic award conditions. The union argued that the schedules should continue to apply to protect employees' rights and ensure workplace safety. The employer contended that the pandemic conditions had sufficiently improved, justifying the cessation of the additional measures.

The Commission examined the terms of the COVID-19 Award Flexibility Schedules and the broader context of the pandemic's impact on the workplace. It noted that the schedules were designed to provide temporary relief and flexibility in response to the extraordinary circumstances posed by COVID-19. The Commission concluded that the schedules were contingent on the ongoing existence of the pandemic conditions. Given that these conditions had sufficiently improved, the employer was entitled to revert to the pre-pandemic award provisions. The Commission emphasised that the schedules were not intended to be permanent, but rather to provide a temporary response to an extraordinary situation.

As a result, the Fair Work Commission upheld the employer's decision to cease operating the award specific COVID-19 schedules. The Commission's decision provided clarity for employers and unions regarding the temporary nature of these schedules and their cessation once pandemic conditions had sufficiently eased. The union's application to maintain the schedules was dismissed.

Orders