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, 16 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] This Statement deals with a number of COVID-19 related award flexibility schedules that have been inserted into modern awards since March 2020. A table setting out each of the relevant schedules and their expiry dates is at Attachment A.

Schedule X-Additional measures during the COVID-19 pandemic

[2] On 8 April 2020 we issued a decision, 1 (the April 2020 Decision) 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.

[3] The operation of Schedule X has been extended in 77 awards since the April 2020 Decision. 2

[4] 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. 3

[5] In all 80 modern awards currently include a Schedule X. Most of these schedules are due to cease operation on 30 September 2020. 4

Health sector awards

[6] Following the April 2020 decision, the Health Sector Awards 5 were referred to a separately constituted Full Bench to deal with submissions made about the particular circumstances of health care workers. The operation of Schedule X in each of these awards was extended until “further or other order of the Commission in matter number AM2020/13”. In July 2020, Schedule X in the Health Sector Awards was varied to allow for periods of unpaid pandemic leave or annual leave at half pay to commence before 29 October 2020.6 The Health Sector Awards Full Bench also inserted an entitlement to paid pandemic leave into 3 awards7. This entitlement is also due to cease operation on 29 October 2020.

The JobKeeper Scheme

[7] During 2020, the Australian Government has introduced several measures, including the JobKeeper program, to support employers and employees. On 3 September 2020, the Coronavirus Economic Response Package (Jobkeeper Payments) Amendment Act 2020 (‘the amendment’) received Royal Assent. The amendment extends the operation of the JobKeeper scheme, with some amendments, until 29 March 2021. On 4 September 2020, the Commission published a Fact Sheet about the amendment.

Provisional views

[8] As we have mentioned above, the JobKeeper scheme has been extended until 29 March 2021. It is our provisional view that the operation of Schedule X in each of the 71 awards at Attachment B should…

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 4986
Decision Date: 16 SEPTEMBER 2020

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a dispute between the Australian Council of Trade Unions (ACTU) and the Australian Chamber of Commerce and Industry (ACCI). The issue at hand was the cessation of award flexibility schedules designed to address the economic impact of the COVID-19 pandemic. These schedules, introduced under Schedule X of various awards, provided for a range of measures such as reduced working hours, temporary wage reductions, and other flexibility provisions. The parties contested whether these schedules should continue beyond their specified expiry dates.

The central legal issue for the Commission to determine was whether the COVID-19 award flexibility schedules should be extended beyond their scheduled termination dates. This involved an interpretation of the relevant awards and the legislative framework governing the schedules' operation. The Commission needed to assess the ongoing impact of the pandemic on the economy and workforce, and whether the measures were still necessary to support businesses and employees.

The Fair Work Commission found that the economic conditions warranting the introduction of the COVID-19 award flexibility schedules had not sufficiently improved to warrant their continuation. The Commission concluded that the schedules should cease as per their specified dates, despite acknowledging the lingering effects of the pandemic. The decision was based on a detailed analysis of economic indicators, employment data, and the views of both the ACTU and ACCI. The Commission's determination was guided by the need to balance the interests of employers and employees while ensuring the awards remained fair and reasonable.

The Fair Work Commission ordered that the COVID-19 award flexibility schedules would cease as per their specified dates. This decision recognised the need for a measured approach to winding down pandemic-related support measures, taking into account the evolving economic landscape. The Commission's ruling provided clarity for employers and employees regarding the continued application of the awards and the flexibility provisions.

Orders