DECISION

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

COVID-19 Award Flexibility Schedules
(AM2020/93)

Award flexibility schedules – Schedule X-Additional measures during the COVID-19 pandemic– award specific COVID-19 schedules–schedules due to cease operation.

[1] On 8 April 2020 we issued a Decision, 1 on our own initiative, varying 99 modern awards to insert a new schedule: 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.

[2] The operation of Schedule X has been extended in 81 awards since the April 2020 Decision.

[3] In addition, in August 2020, Schedule X was inserted into the Building and Construction General On-site Award 2010, the Joinery and Building Trades Award 2010 and the Mobile Crane Hiring Award 2010 by a separately constituted Full Bench. 2

[4] On 16 September 2020 we issued a Statement 3 in relation to Schedule X in which we expressed the 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 20204 extending the provisional view to a further 3 modern awards.

[5] The 16 September Statement confirmed that we did not intend to vary Schedule X in the 9 Health Sector Awards. We also noted that Schedule X in the Live Performance Award 2010 expires on 30 June 2021 and so this award was not included in the list of awards to be varied. A total of 74 awards were the subject of the provisional view, these are set out at Attachment A to this decision.

[6] Interested parties were invited to file submissions in response to the provisional views by 4pm on Thursday 24 September 2020. Submissions were received from:

•  Association of Consulting Architects Australia in relation to the Architects Award 2020

•  Eagers Automotive in relation to the Vehicle Repair, Services and Retail Award 2020

•  National Retail Association in relation to the General Retail Industry Award 2010

•  Newsagents Association of NSW & ACT Limited in relation to the General Retail Industry Award 2010

[7] Each of these submissions supported the provisional view. There have been no submissions filed opposing our provisional view.

[8] In our Statement of 16 September 2020, we made it clear that in the event that no submissions were filed opposing our provisional view, then we would vary each of the relevant awards to extend the operation of Schedule X to 29 March 2020.

[9] As we mentioned in the 16 September Statement, the Coronavirus Economic Response Package (Jobkeeper Payments) Amendment Act 2020 received Royal Assent on 3 September 2020. The amendment extends the operation of the JobKeeper scheme, with some amendments, until 29 March 2021. On 4 September 2020, the Commission published a Fact Sheet about the amendment.

[10] The JobKeeper scheme is part of a range of measures introduced by both State and Federal Governments during the course of the COVID-19 pandemic. The Commission has published an Information Note-Government responses to the COVID-19 pandemic which has been updated regularly since it was first published on 25 March 2020. The most recent update to the Information Note was on 18 September 2020.

[11] The observations made in the 8 April 2020 decision in respect of the basis for the initial insertion of Schedule X into the relevant awards remain apposite. In particular, the COVID-19 pandemic is still in progress and without 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 self-isolate to do so, thereby limiting the spread of COVID-19 in workplaces and allowing businesses to continue to operate.

[12] The observations made in the 8 April 2020 decision regarding the s.134 considerations and the necessity for the inclusion of Schedule X in these awards (in order to ensure that they achieve the modern awards objective) remain cogent.

[13] For the reasons set out above we are satisfied that the variation of each of these awards to extend the operation of Schedule X until 29 March 2021 is necessary to ensure that these awards achieve the modern awards objective.

[14] Variation determinations for each of the 74 awards at Attachment A will be issued with this decision.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Attachment A

 1   [2020] FWCFB 1837

 2   [2020] FWCFB 4126

 3   [2020] FWCFB 4986

 4   [2020] FWCFB 5028