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Fair Work Act 2009                                                    




s.158 - Application to vary or revoke a modern award


Application by the Finance Sector Union of Australia

(AM2021/9 and AM2021/49)


Banking, Finance and Insurance Award 2020




1.33 PM, MONDAY, 29 MARCH 2021


JUSTICE ROSS:  Good afternoon.  Could I have the appearances please.  Firstly from the FSU.


MS L SUTHERLAND:  Thank you, your Honour.  If I may, my name is Leanne Sutherland, I'm an industrial officer at the FSU.


JUSTICE ROSS:  Thank you, Ms Sutherland.  From ABI?


MR J ARNDT:  Thank you, your Honour.  Arndt, initial J.  Can I also mention an appearance for the Australian Chamber of Commerce and Industry.


JUSTICE ROSS:  Thank you.  Are there any other appearances?  No.  Ms Sutherland, the FSU filed an application to extend the operative date of, as I read the application, part of schedule X to the Banking, Finance and Insurance Award of 24 March this year.  Schedule X I think is due to expire on 29 March, today, and you're seeking to extend the entitlement to unpaid pandemic leave from 29 March to 31 December this year, I think.  As you no doubt are aware, on Friday we varied 57 modern awards to extend the operation of schedule X in totality, that is both parts of it, the unpaid pandemic leave and the flexibility to take twice as much annual leave at half pay.  What do you say about the scope of the application?  That is, that it only applies to unpaid pandemic leave?


MS SUTHERLAND:  Your Honour, that wasn't my understanding of the application that we lodged but if that's the case I'll have to look back over the application.  I wasn't aware that that was the scope of the FSU's application only.  Even though I was the one responsible for it.


JUSTICE ROSS:  No, that's fine.  It's just that the application at least as - I may have made a mistake about that, Ms Sutherland, but the application certainly had the appearance of being in the same terms as the other 57 that were filed, and only sought to vary two of the dates in the schedule.  The effect of that would be that the annual leave at half pay only applied where that had been entered into prior to 29 March.  But in any event, really what I want to know is irrespective of the form of the initial application, bearing in mind that we've varied the other variations we've made to the 57 other modern awards, we've varied each aspect of schedule X.  Is the FSU opposed to that course in this or - - -


MS SUTHERLAND:  No, not at all, your Honour.  No.


JUSTICE ROSS:  Well, look, your application sets out the basis on which it's made.  We've had the opportunity to read that.  Before I go to Mr Arndt to find out the position of ABI and ACCI, was there anything you wanted to add, Ms Sutherland?


MS SUTHERLAND:  Yes.  President Ross and members of the Full Bench, the FSU sincerely apologises for the late application.  I take responsibility for that.  It was an administrative oversight.  It's not a very acceptable explanation or excuse but it's the only one I have to give, so we do apologise and we would like it noted that we'd hate it if employees that are covered by the award were to be disadvantaged if schedule X isn't extended in the banking award.


JUSTICE ROSS:  All right.  Thank you, Ms Sutherland.  Mr Arndt, what's the attitude of the employer organisations that you represent?


MR ARNDT:  Your Honour, we don't oppose the extension in relation to this award.  Obviously the pandemic isn't over and so much was acknowledged by the fact that on Friday this schedule was extended in a number of other awards.  We would say that if it is to be extended it should be extended in its entireties to allow for some consistency over the scope of the awards, but we don't oppose the extension.


JUSTICE ROSS:  All right.  Thank you, Mr Arndt.  Look, because we're doing the hearing by Teams, we'll need to adjourn for 10 minutes or so to enable the Bench to confer because we're not sitting together.  We're dealing with it remotely.  We'll return at - we'll have a brief discussion amongst ourselves.  If you could keep yourselves available and my Associate will be in touch with you in 10 minutes or so.  So we'll adjourn and then resume and we'll issue our decision at that point.  Anything finally from anyone before we adjourn?  No?


MR ARNDT:  No, your Honour.


MS SUTHERLAND:  No, not from the FSU.


JUSTICE ROSS:  All right.  Thanks very much, we'll be back with you shortly.

SHORT ADJOURNMENT                                                                     [1.39 PM]

RESUMED                                                                                                [1.48 PM]


JUSTICE ROSS:  All right, thank you for your patience.  We'll go directly to the decision.


On 24 March 2021, the Finance Sector Union filed an application to extend the operative date of schedule X to the Banking Finance and Insurance Award.  Schedule X has two elements.  The first provides an entitlement to unpaid pandemic leave and the second for the flexibility to take twice as much annual leave at half pay.  These entitlements are due to expire on 29 March.


On Friday 26 March, we varied 57 modern awards to extend the operation of schedule X in its totality until 31 December 2021.  In that decision we said that the observations made in the April 2020 decision regarding the basis for the initial insertion of schedule X into the relevant awards remains apposite.


During the course of the hearing it was clarified that the FSU does not oppose the extension of the whole of the schedule, to the extent there was any doubt about its initial application.  Mr Arndt representing ABI and ACCI did not oppose that course of action.


As we noted in our decision on Friday 26 March, absent the continued operation of schedule X there would be a regulatory gap in the award safety net concerning employees who are required to self-isolate.  Continued access to unpaid pandemic leave will enable more people to remain in employment and will support the important public policy objective of encouraging those who should self-isolate to do so.  This will assist in limiting the spread of COVID-19 in workplaces and will allow businesses to continue to operate.


The flexibility to take twice as much annual leave at half pay will facilitate the retention of employees in employment during the pandemic and will have a positive impact on business.  For the reasons just stated, we are satisfied that the variation of the Banking, Finance and Insurance Award to extend the operation of schedule X in all of its elements until 31 December 2021 is necessary to ensure that this award achieved the modern award objective.


We will issue a determination to that effect later this afternoon.  Thank you for your attendance and your submissions.  We will now adjourn.


MS SUTHERLAND:  Thank you, your Honour.


MR ARNDT:  Thank you, your Honour.

ADJOURNED INDEFINITELY                                                            [1.51 PM]