TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
s.158 - Application to vary or revoke a modern award
Application by The Association of Professionals Engineers Scientists Managers (APESMA)
(AM2021/9 and others)
Airport Employees Award 2020
Architects Award 2020
Professional Employees Award 2020
State Government Agencies Award 2020
1.00 PM, WEDNESDAY, 31 MARCH 2021
JUSTICE ROSS: Could I have the appearances, please?
MS M ANTHONY: Yes, your Honour - my name is Michelle Anthony and I appear on behalf of APESMA.
JUSTICE ROSS: Thank you, Ms Anthony. Anybody else? Any other appearances? I note there is no appearance by any employer interests. I'd also note that the applications were published on our website on 28 March and the notice of listing was published on 29 March. We have also contacted Ai Group to see if they intend announcing an appearance. They have said that they do not intend to appear. Ms Anthony, your application - or APESMA's application - seeks to extend the operative date of schedule X in four awards: the Airport Employees' Award, State Government Agencies Award, the Architects' Award and the Professional Employees' Award. We have received correspondence from - which I think you were copied into - on behalf of the Association of Consulting Architects Australia, indicating that they support the application in respect of the Architects Award.
Ms Anthony, the schedule X, which - there are two issues I want to raise with you. The first is schedule X provides for an entitlement to unpaid pandemic leave and the flexibility to take twice as much annual leave at half pay. As I understand your application, it only seeks to extend the entitlement to unpaid pandemic leave and doesn't seek to change the date in respect of the capacity to take twice as much annual leave at half pay. That position was consistent with the position that's been taken in a number of applications we've dealt with within the last week. We have varied some 58 modern awards to extend the operation of schedule X. Those variations apply to both elements of schedule X. That has been done without objection from the union applicants in each case. We have extended the operation of both the unpaid pandemic leave element and the flexibility to take twice as much annual leave at half pay.
Are you content to adopt that course in respect of the four awards which your applications relate?
MS ANTHONY: Yes, your Honour. I'm aware of the determinations made in relation to the 58 other modern awards in the last week. Yes, we would support a consistent treatment of these awards.
JUSTICE ROSS: The second issue is a technical difficulty in as much as schedule X in these awards has now expired. So rather than varying - we can't vary an expired schedule. So what we would need to do is to reinstitute the schedules in respect of each of those awards. I just wanted to draw that to your attention. And I assume that you're content with that course as well.
MS ANTHONY: Yes, Your Honour. We would be content, and I actually would like to take the opportunity to apologise for the lateness of the application, which was due to an oversight. We would be grateful if the extra steps necessary could be taken, and understand that that could involve reinstating the schedules.
JUSTICE ROSS: And look, so that means in practice that there's a slight interregnum where there won't be an entitlement, but it won't be for a very long period. All right. Well, thank you, Ms Anthony. I think because we're dealing with this matter by teams and remotely, if you can stay on the line, bear with us for a moment, and I will confer with my colleagues, and then we'll come back and give you our decision. All right?
MS ANTHONY: Yes. Thank you, Your Honour.
JUSTICE ROSS: Thank you.
SHORT ADJOURNMENT [1.05 PM]
RESUMED [1.07 PM]
JUSTICE ROSS: Thank you, Ms Anthony. We'll now proceed to decision.
On 26 March 2021, APESMA filed applications to extend the operative date of schedule X in four awards: the Airport Employees Award, the State Government Agencies Award, the Architects Award and the Professional Employees Award. Schedule X provides an entitlement to unpaid pandemic leave, and the flexibility to take twice as much annual leave at half pay. As framed, the applications have the practical affect of only extending the entitlement to unpaid pandemic leave, and not extending the flexibility to take twice as much annual leave at half pay.
During the course of the hearing, Ms Anthony confirmed that she was content to have the awards varied in respect of both elements of schedule X. We note that such a course is consistent with the approach we have taken in two decisions; one on 26 March, and one on 29 March; to vary some 58 modern awards to extend the operation of schedule X in its totality until 31 December 2021. In those decisions, we said that the observations made in the April 2020 decision regarding the basis or the initial basis for the insertion of schedule X into modern awards remained apposite. We adopt the same approach in respect of the four awards that are before us.
As we noted in our decision of 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. Continuing 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 isolate to do so. This will assist in limiting the spread of COVID-19 in workplaces, and allowing 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 stated, we are satisfied that the reinstatement of schedule X in each of these four awards is necessary to ensure that they achieve the modern awards objective. We are also satisfied that as reinstated, schedule X in these awards would operate until 31 December 2021. We say the reinstatement of the schedule X, because the operative date of the schedule X, or the operation of the schedule in each of these awards expired on 29 March 2021, and so we are not able to vary an expired term of the award. We will have to reinsert the award. And those are the - sorry, reinsert the schedule. And that is the step that we will take.
We will publish our variation determinations later today. Thanks very much for your attendance, Ms Anthony. We will now adjourn.
ADJOURNED INDEFINITELY [1.11 PM]