COVID-19 pandemic – Schedule X and (AM2020/34 and others) Clerks-Private Sector Award 2020

The case concerns a dispute between the applicant, the Australian Services Union (ASU), and the respondents, the Commonwealth of Australia, and the Minister for Employment. The dispute revolves around the expiration of Schedule X of the Clerks-Private Sector Award 2020, which was introduced to provide additional measures during the COVID-19 pandemic, and its implications on employees' working conditions and entitlements. The matter was heard by the Fair Work Commission (FWC) and the Federal Court of Australia.

The central legal issues before the court were whether the expiration of Schedule X would result in the automatic cessation of the additional measures it provided, and whether the FWC had the authority to extend these measures beyond their original expiration date of 30 June 2020. The court was required to interpret section 157(3) of the Fair Work Act 2009 (Cth) in light of the unique circumstances of the pandemic, and to determine the appropriate role of the FWC in responding to such extraordinary events.

The court held that the expiration of Schedule X did not automatically result in the cessation of the additional measures it provided, as the text of the Schedule did not explicitly state this outcome. Instead, the court found that the FWC had the authority to extend the measures under section 157(3) of the Fair Work Act, and that the FWC had exercised this power appropriately in the circumstances. The court further held that the FWC's decision to extend the measures was reasonable, lawful, and in accordance with the principles of natural justice. As a result, the court dismissed the application and upheld the FWC's decision to extend Schedule X of the Clerks-Private Sector Award 2020.

The final orders of the court were that the application be dismissed, that the decision of the FWC be affirmed, and that the respondents be entitled to their costs of the application. The court found that the FWC had acted within its powers in extending the additional measures provided by Schedule X, and that the expiration of the Schedule did not result in the automatic cessation of those measures. The decision provides clarity on the role of the FWC in responding to extraordinary events such as the COVID-19 pandemic, and the scope of its powers under the Fair Work Act.