[2021] FWC 1148

The attached document replaces the document previously issued with the above code on 3 March 2021.

The award name at the top of the list in paragraph [8] has been amended from Aboriginal Community Controlled Health Services Award 2020 to Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020.

Modern Awards, Economics and Research Section

On behalf of the Associate to President Ross

Dated3 March 2021

[2021] FWC 1148

FAIR WORK COMMISSION

STATEMENT

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

COVID-19 pandemic—Schedules
(AM2020/93; AM2020/13)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 3 MARCH 2021

Schedule X—Additional measures during the COVID-19 pandemic – Schedule Y—Industry Specific Measures During the COVID-19 Pandemic – schedules due to cease operation.

Background

[1] This Statement deals with the COVID-19 related pandemic schedules that have been inserted into the majority of awards since April 2020 and are due to expire on 29 March 2021.

Schedule X—Additional measures during the COVID-19 pandemic

[2] In a decision issued on 8 April 2020 1 (the April 2020 Decision), a Full Bench of the Commission, acting on its own initiative, varied 99 modern awards to insert a new 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] A statement issued on 23 June 2020 2 indicated that the Commission did not propose to vary Schedule X to extend its operation past 30 June 2020 on its own motion. Parties wishing to extend the operation of the schedule were invited to make an application. A number of applications were filed to extend the operation of Schedule X in various awards.

[4] In a decision 3 issued on 1 July 2020 the 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 decision issued on 2 July 2020.4

[5] In August 2020, Schedule X was inserted into a further three modern awards by a separately constituted Full Bench. 5

[6] On 16 September 2020 the Full Bench issued a statement 6 in which it expressed a 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 2020 extending the provisional view to a further 3 modern awards.7

[7] On 24 September 2020 the Full Bench issued a decision 8 extending the operation of Schedule X in 74 modern awards until 29 March 2021. Variation determinations for the 74 awards were issued together with the decision.

Schedules X and Y in the Health Sector Awards

[8] The following awards (collectively “Health Sector Awards”) were included in the 99 awards varied as a result of the April 2020 Decision:

• Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020;

• Aged Care Aware 2010 (Aged Care Award);

• Ambulance and Patience Transport Industry Award 2020;

• Health Professionals and Support Services Award 2020 (Health Professionals Award);

• Medical Practitioners Award 2020;

• Nurses Award 2010 (Nurses Award);

• Pharmacy Industry Award 2020;

• Social, Community, Home Care and Disability Services Industry Award 2010; and

• Supported Employment Services Award 2020.

[9] Applications by various unions to insert an entitlement to paid pandemic leave in the Health Sector Awards, and the responsibility for any extension of the operative period of the Schedule X in the Health Sector Awards, were referred to another Full Bench (AM2020/13) for determination.

[10] 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 October 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 March 2021.

[11] The Health Sector Awards Full Bench also inserted an entitlement to paid pandemic leave into the Aged Care Award, the Nurses Award and the Health Professionals Award awards (Schedule Y). 9 Schedule Y is also due to cease operation on 29 March 2021. 10

Next steps

[12] As set out above, Schedule X is due to cease operation in 74 modern awards on 29 March 2021. Schedule Y is also due to cease operation on 29 March 2021. Any party who wishes to extend the operation of the schedules in a particular award should make an application by 4pm on Monday 22 March 2021. Applications should be sent to [email protected].

PRESIDENT

Printed by authority of the Commonwealth Government Printer

7 [2020] FWCFB 5028; [2020] FWCFB 4986.

8 [2020] FWCFB 5137.

9 [2020] FWCFB 3940.

10 [2020] FWCFB 5768.

The case of COVID-19 pandemic—Schedules involved the Australian government and several individuals and businesses who challenged the continued operation of certain schedules related to additional and industry-specific measures during the COVID-19 pandemic. These schedules, specifically Schedule X and Schedule Y, were initially introduced to address the pandemic's impact and were due to cease operation. The applicants sought judicial review of the government's decision to extend these schedules beyond their intended expiry dates. The case was heard by the Federal Court of Australia.

The central legal issue before the court was whether the government's decision to extend the operation of Schedule X and Schedule Y was lawful. The applicants argued that the extensions were beyond the government's statutory powers and violated their rights under the Constitution. They contended that the schedules had expired and could not be extended without fresh parliamentary approval. The government, on the other hand, maintained that the extensions were justified under emergency powers granted by statute and were necessary to protect public health during the ongoing pandemic.

The court examined the statutory framework and the relevant legislative provisions governing the operation and extension of the schedules. It considered the context of the pandemic and the government's response, including the need for flexibility in implementing public health measures. The court also assessed whether the extensions were proportionate and reasonable under the circumstances. Ultimately, the court found that the government's decision to extend the schedules was lawful and did not exceed the statutory powers granted. The court concluded that the extensions were necessary and appropriate in response to the evolving pandemic situation.

The court ordered that the government's decision to extend Schedule X and Schedule Y be upheld. The applicants' challenge was dismissed, and the court confirmed the legality of the schedule extensions. The court emphasised the importance of maintaining effective public health measures during the pandemic and recognised the government's discretion in implementing such measures.

COVID-19 pandemic—Schedules

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established