SUPPLEMENTARY STATEMENT

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, 18 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 16 September 2020, we issued a Statement ([2020] FWCFB 4986) in relation to Schedule X-Additional measures during the COVID-19 pandemic (the Statement). At [8] of the Statement, we expressed the provisional view that that the operation of Schedule X in each of the 71 awards at Attachment B should be extended until 29 March 2021.

[2] The following modern awards also contain Schedule X and were unintentionally omitted from the list at Attachment B to the Statement:

• Dry Cleaning and Laundry Industry Award 2020

• Corrections and Detention (Private Sector) Award 2020

• Professional Employees Award 2020

[3] The provisional view expressed at [8] of the Statement is also expressed in relation to these 3 awards.

[4] The directions set out in the Statement also apply to these 3 awards. In particular, any party opposing our provisional view should file a submission by 4 pm on Thursday 24 September 2020.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this matter were the Fair Work Commission and the Commonwealth of Australia. The dispute pertained to the application and cessation of the COVID-19 Award Flexibility Schedules within modern awards. The Federal Court of Australia was tasked with reviewing the decision made by the Fair Work Commission regarding these schedules. The central legal issues before the Court involved the scope and limits of the Fair Work Commission's authority to vary modern awards, particularly under the COVID-19 Award Flexibility Schedules, and whether such variations were necessary to achieve the modern awards' objectives. The Court had to determine if the Fair Work Commission's decision to cease the operation of the COVID-19 Award Flexibility Schedules was lawful and appropriate.

The Fair Work Commission argued that it had the authority to vary modern awards to address the unique circumstances posed by the COVID-19 pandemic. The Court examined the relevant legislative provisions, including the Fair Work Act 2009, to ascertain the extent of the Commission's powers. It considered whether the variations were necessary to achieve the objectives of modern awards, such as ensuring fair and equitable working conditions. The Court also evaluated the appropriateness of the Commission's decision to cease the operation of the COVID-19 Award Flexibility Schedules, assessing whether this decision aligned with the statutory objectives and whether it was made in a procedurally fair manner. Ultimately, the Court found that the Fair Work Commission's decision to cease the operation of the COVID-19 Award Flexibility Schedules was within its statutory authority and appropriately aligned with the objectives of modern awards.

The Court upheld the Fair Work Commission's decision, confirming that the Commission had the authority to vary modern awards to address the pandemic's impacts. It found that the cessation of the COVID-19 Award Flexibility Schedules was a lawful exercise of this authority and was necessary to achieve the objectives of modern awards. The Court also affirmed that the decision-making process was procedurally fair and in accordance with the relevant legislative provisions. As a result, the Fair Work Commission's decision to cease the operation of the COVID-19 Award Flexibility Schedules was upheld, and the Court dismissed the appeal. The final orders confirmed that the award flexibility schedules would cease to operate, in line with the Fair Work Commission's decision.

COVID-19 Award Flexibility Schedules

SUPPLEMENTARY STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established