DECISION

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

Clerks—Private Sector Award 2020
(AM2020/98)

Clerks—Private Sector Award 2020 – provisional view confirmed – extension of Schedule I to 29 March 2021.

[1] On 28 March 2020 the Commission issued a decision 1 (the March 2020 Decision) granting a joint application filed by the Australian Industry Group (Ai Group) and the Australian Chamber of Commerce and Industry (ACCI) and supported by the Australian Council of Trade Unions (ACTU) and the Australian Services Union (ASU), to insert a new schedule, ‘Schedule I-Award flexibility during the COVID-19 pandemic’, into the Clerks – Private Sector Award 2020 (the Clerks Award). The new schedule came into operation on 28 March 2020 and was to cease to operate on 30 June 2020, unless extended.

[2] Since the March 2020 Decision the Commission has granted two applications to extend the operation of Schedule I. 2 The Schedule is currently due to cease operation on 30 November 2020. In the most recent decision to extend the operation of Schedule I the Full Bench said:

‘the terms of Schedule I reflect the extraordinary circumstances arising from the restrictions imposed to contain the COVID-19 virus. The restrictions are now easing but the direct economic and social impacts of the pandemic will be felt for some time to come. It also seems likely that there will be a continuing need for flexible work arrangements to assist employers and employees in adapting to the changed conditions and to support the recovery. The facilitation of agreed working from home arrangements looms large in this context…

These circumstances suggest that there is a need to consider whether it is necessary to vary the Clerks Award to provide more enduring means of facilitating agreed working from home arrangements. The extension of Schedule I provides the parties with an opportunity to consider whether a more enduring solution is necessary and if so, the form of that solution…

We direct the ASU, ACTU, Ai Group and ACCI to confer in respect of the variations to the Clerks Award (if any) which are necessary to facilitate agreed working from home arrangements. In this regard we refer the parties to the model Flexibility Schedule attached to the President’s Statement of 31 August 2020 as a starting point for those discussions. We would also refer the parties to the updated Information Note on Working from Home published on 1 October 2020.

The Commission will convene a conference in the week commencing 9 November 2020 to receive a report on the discussions. 3

[3] A conference was held on 9 November 2020 4 at which Ai Group and ACCI proposed that the operation of Schedule I be extended until 29 March 2021, to provide time for the parties to give further consideration to the form of an award term that is intended to operate beyond the current restrictions imposed to deal with the COVID-19 pandemic. The proposed extension was not opposed by the ACTU or ASU.

[4] In a Statement issued on 10 November 2020 5 (the November 2020 Statement) we expressed a provisional view that Schedule I should be extended until 29 March 2021. Any party opposing our provisional view was directed to file submissions by 4pm on Thursday 12 November 2020.

[5] In the November 2020 Statement, we made it clear that if no submissions were filed opposing our provisional view, then we would vary the Clerks Award accordingly. No such submissions were filed. We confirm our provisional view.

[6] We are satisfied that the variation proposed is necessary to achieve the modern awards objective and in so deciding we have taken into account the considerations in s.134(1)(a) to (h), insofar as they are relevant.

[7] A variation determination will be issued with this decision.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR724493>

 1   [2020] FWCFB 1690.

 2   [2020] FWCFB 1690 and [2020] FWCFB 5199.

 3   [2020] FWCFB 5199 at [89], [94], [101] – [102].

 4   Transcript, 9 November 2020.

 5   [2020] FWCFB 5999.