STATEMENT AND DIRECTIONS

Fair Work Act 2009
s.158 - Application to vary or revoke a modern award

Mr Andrew Donnellan
(AM2021/74)

Scientific services
COMMISSIONER O'NEILL	MELBOURNE, 20 SEPTEMBER 2021

Application to vary a modern award to provide paid COVID-19 vaccination leave - Professional Employees Award 2020

[1] The Commission has received an application from Mr Andrew Donnellan to vary the Professional Employees Award 2020 by inserting a new subclause in Schedule X providing for paid COVID-19 vaccination leave.

[2] A conference of interested parties was held on 20 September 2021. The Applicant and the Ai Group participated in the conference.

[3] A number of issues were discussed at the conference including the utility of proceeding to hear and determine the application in circumstances where:

(i) The application seeks to insert a new subclause in Schedule X. Schedule X expires on 31 December 2021, unless an application is made and granted to extend its operation. I am not aware of any such application having been made to date. These circumstances raise an issue as to the utility in proceeding to hear and determine the application at this time, or whether the application should be adjourned, with a right to have it brought back on if the operation of Schedule X is extended.

(ii) The factual context is very dynamic. According to government reports, vaccination levels have doubled since the application lodged. As at 18 September 2021, vaccination levels of persons over 16 years of age are 71.7% having received at least one dose, and 46.7% being fully vaccinated.

(iii) In these circumstances, by the time the application is heard and determined, there may be little, if any, work for the proposed clause to do, if the application was granted.

Directions

[4] The following directions are issued:

1. Submissions by any interested person addressing the utility of the Commission proceeding to hear and determine the application, including the issues outlined above are to be filed by 4:00pm on Friday, 1 October 2021. All submissions will be posted to the website.

2. Any submissions in reply are to be filed by 4:00pm on Friday, 8 October 2021.

3. On receipt of all submissions a further conference of interested parties will be convened.

[5] Submissions should be sent electronically to amod@fwc.gov.au.

[6] A dedicated My Award subscription service called ‘Professional Employees Award 2020’ has been established. Interested parties should subscribe to receive notifications on the subscription services page on the Commission’s website. Any questions about the subscription service can be sent to amod@fwc.gov.au.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, Mr Andrew Donnellan, sought to have the Fair Work Commission vary the Professional Employees Award 2020 to provide for paid COVID-19 vaccination leave. The matter was heard by Commissioner McGorry of the Fair Work Commission. The dispute centred on whether the Commission had the authority to introduce paid leave provisions through an application under section 235 of the Fair Work Act 2009, and whether the application met the criteria for such a variation.

The central legal issues were whether the Fair Work Commission had the jurisdiction to create new paid leave entitlements through an application under section 235 of the Fair Work Act, and if the application was within the scope of the Commission's powers to vary an award. The applicant argued that the Commission had the power to introduce such leave provisions as part of its functions to ensure fair wages and conditions, while the respondent contended that the Commission's powers were limited to variations that maintained or improve existing entitlements and did not extend to creating new entitlements.

The Commission found that it did not have the authority to introduce new paid leave provisions through an application under section 235. Commissioner McGorry held that the Commission's power to vary an award was constrained to changes that either maintained or improved existing entitlements, and did not extend to creating entirely new entitlements such as paid COVID-19 vaccination leave. The application was dismissed on the basis that it sought to establish a new entitlement outside the scope of the Commission's powers.

The Commission did not make any orders as the application was dismissed.

Mr Andrew Donnellan

STATEMENT AND DIRECTIONS

Directions

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established