STATEMENT

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

COVID-19 Award Flexibility – Schedule X
(AM2021/86)

Award flexibility schedules – Schedule X—Additional measures during the COVID-19 pandemic – award specific COVID-19 schedules – schedules due to cease operation – to extend operation to 30 June 2022.

Background

[1] On 8 April 2020 a Full Bench issued a decision 1 (the April 2020 Decision) on its 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 in various awards (excluding the health sector awards 2) was subsequently extended to 30 September 20203 and later extended again until 29 March 20214 and 31 December 2021.5 The operation of Schedule X in the health sector awards was extended by a separately constituted Full Bench to 31 July 20206 and later again to 29 October 20207, 29 March 20218 and 31 December 20219.

[3] On 10 December 2021, the Commission, through its subscription service, notified the parties as follows: “Schedule X is currently due to cease operation after 31 December 2021 in the 73 awards listed below. As set out in clause X.1 of Schedule X, the period of operation can be extended on application.”

[4] I have been allocated this matter to deal with pursuant to s 616(3D)(a) of the Fair Work Act 2009 (FW Act), which provides that the President may direct a single Member to perform a function or exercise a power under s 160 of the FW Act varying a modern award.

Applications

[5] A number of applications seeking to extend in part the operation of Schedule X from 31 December 2021 to 30 June 2022 have been received in relation to 67 modern awards from:

•  Australian Manufacturing Workers’ Union (AMWU)

•  Australian Nursing and Midwifery Federation

•  Australian Salaried Medical Officers Federation

•  Australian Services Union

•  Australian Workers’ Union

•  Construction, Forestry, Maritime, Mining and Energy Union

•  CPSU, the Community and Public Sector Union

•  Finance Sector Union of Australia

•  Health Services Union

•  Shop, Distributive & Allied Employees’ Association

•  United Workers Union.

[6] No applications were received in relation to the following seven awards:

•  Animal Care and Veterinary Services Award 2020

•  Architects Award 2020

•  Corrections and Detention (Private Sector) Award 2020

•  Plumbing and Fire Sprinklers Award 2020

•  Professional Employees Award 2020

•  Restaurant Industry Award 2020

[7] An application was also received from the CFMMEU seeking to vary the Mobile Crane Hiring Award 2020 (Mobile Crane Award). Unlike the other applications lodged which relate to currently operating schedules, the application in relation to the Mobile Crane Award seeks to re-enliven Schedule X in that award (as Schedule X in the Mobile Crane Award expired on 29 March 2021). I consider it appropriate for this application to be heard together with the other applications relating to the operation of Schedule X. A list of the awards the subject of these applications is contained in Attachment A.

[8] Each of the applications only seeks to extend or renew the operation of clauses X.1 and X.2.1(d) of Schedule X, which concern unpaid pandemic leave. The applications do not propose the extension of that part of Schedule X which provides the flexibility to take twice as much annual leave at half pay.

Next steps

[9] I direct that any interested party which opposes the grant of any of the applications with respect to any of the awards shall file a submission by 12pm (AEDT) on Friday, 17 December 2021 which:

(1) identifies the awards in respect of which the applications are opposed; and

(2) outlines the reasons for the party’s opposition.

[10] Submissions should be sent to amod@fwc.gov.au in word version and include the relevant award title in the subject line.

[11] If any submissions are filed opposing the application with respect to particular awards, then a hearing concerning those awards will take place at 11am (AEDT) on Monday 20 December 2021, by telephone (unless otherwise advised). Parties wishing to appear at the hearing are to provide the name, direct number and organisation by 5pm (AEDT) Friday 17 December 2021 to chambers.hatcher.vp@fwc.gov.au.

[12] In the event that no submissions are filed opposing the applications, then the hearing proposed will be vacated and I will proceed to determine the applications on the papers. To the extent that, in respect of any particular award, no submission opposing the application is filed, I will deal with the application with respect to that award on the papers. Interested parties will be advised on or before 4pm (AEDT) Friday 17 December 2021 whether the hearing will proceed and, if so, in relation to which awards.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR736758>

Attachment A

 1   [2020] FWCFB 1837

 2   Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020; Aged Care Award 2010; Ambulance and Patient Transport Industry Award 2020; Health Professionals and Support Services Award 2020; Medical Practitioners Award 2020; Nurses Award 2020; Pharmacy Industry Award 2020; Social, Community, Home Care and Disability Services Industry Award 2010; and Supported Employment Services Award 2020.

 3   [2020] FWCFB 3490

 4   [2020] FWCFB 5137

 5   [2021] FWCFB 1621

 6   Transcript, 30 June 2020, PN 83; PR720633

 7   [2020] FWCFB 3986

 8   [2020] FWCFB 5768

 9   [2021] FWCFB 1622