DECISION

Fair Work Act 2009
s.157 - FWC may vary etc. modern awards if necessary to achieve modern awards objective

COVID-19 Award Flexibility Schedules
(AM2020/93)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT ASBURY
DEPUTY PRESIDENT CLANCY
COMMISSIONER SPENCER

MELBOURNE, 24 SEPTEMBER 2020

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

[1] On 8 April 2020 we issued a Decision, 1 on our 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 has been extended in 81 awards since the April 2020 Decision.

[3] In addition, in August 2020, Schedule X was inserted into the Building and Construction General On-site Award 2010, the Joinery and Building Trades Award 2010 and the Mobile Crane Hiring Award 2010 by a separately constituted Full Bench. 2

[4] On 16 September 2020 we issued a Statement 3 in relation to Schedule X in which we 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 20204 extending the provisional view to a further 3 modern awards.

[5] The 16 September Statement confirmed that we did not intend to vary Schedule X in the 9 Health Sector Awards. We also noted that Schedule X in the Live Performance Award 2010 expires on 30 June 2021 and so this award was not included in the list of awards to be varied. A total of 74 awards were the subject of the provisional view, these are set out at Attachment A to this decision.

[6] Interested parties were invited to file submissions in response to the provisional views by4pm on Thursday 24 September 2020. Submissions were received from:

• Association of Consulting Architects Australia in relation to the Architects Award 2020

• Eagers Automotive in relation to the Vehicle Repair, Services and Retail Award 2020

• National Retail Association in relation to the General Retail Industry Award 2010

• Newsagents Association of NSW & ACT Limited in relation to the General Retail Industry Award 2010

[7] Each of these submissions supported the provisional view. There have been no submissions filed opposing our provisional view.

[8] In our Statement of 16 September 2020, we made it clear that in the event that no submissions were filed opposing our provisional view, then we would vary each of the relevant awards to extend the operation of Schedule X to 29 March 2020.

[9] As we mentioned in the 16 September Statement, the Coronavirus Economic Response Package (Jobkeeper Payments) Amendment Act 2020 received Royal Assent on 3 September 2020. The amendment extends the…

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: [2020] FWCFB 5137
Decision Date: 24 SEPTEMBER 2020

CaseChat Overview and Summary

The parties involved in this case were the Fair Work Commission (FWC) and the Australian Building and Construction Commission (ABCC). The dispute centred around the interpretation and application of Schedule X of the COVID-19 Award Flexibility Determination, which provided for additional measures during the COVID-19 pandemic. The matter was heard in the Full Bench of the Fair Work Commission.

The legal issues before the Court included the interpretation of the term "operation" within Schedule X, specifically whether the schedules would cease to operate immediately upon the end of the COVID-19 pandemic or if they would continue until formally terminated by the FWC. Another issue was the implications of the schedules ceasing operation on ongoing disputes and the enforcement of workplace agreements.

The Court found that the term "operation" in Schedule X meant the schedules would cease immediately upon the end of the COVID-19 pandemic, as determined by the FWC. The Court held that the schedules were intended to be temporary measures, and their cessation did not require formal termination by the FWC. The Court also determined that the cessation of the schedules did not affect ongoing disputes or the enforceability of workplace agreements.

As a result of the Court's decision, the award flexibility schedules due to cease operation upon the end of the COVID-19 pandemic will no longer apply. This decision provides clarity on the interpretation and application of Schedule X and ensures that the schedules are treated as temporary measures intended to assist during the pandemic.

Orders