[2021] FWCFB 1601
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.158—Applications to vary, revoke or make modern award

COVID-19 Award Flexibility Schedules
(AM2021/9 and Ors)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT

MELBOURNE, 24 MARCH 2021

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

Background

[1] On 8 April 2020 a Full Bench of the Fair Work Commission (Commission) issued a decision, 1 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] In a decision 2 issued on 1 July 2020 a Full Bench expressed a provisional view that the operative date of Schedule X in each of these awards be extended to 30 September 2020. The Full Bench confirmed its provisional view in a decision3 issued on 2 July 2020.

[3] In August 2020, Schedule X was inserted into a further three modern awards by a separately constituted Full Bench.4

[4] On 16 September 2020 the Full Bench issued a Statement 5 in relation to Schedule X which 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 20206 extending the provisional view to a further 3 modern awards.

[5] On 24 September 2020 a Full Bench issued a decision 7 extending the operation of Schedule X in 74 modern awards until 29 March 2021.

[6] On 3 March 2021 a Statement 8 was issued inviting interested parties wishing to extend the operation of Schedule X in the 74 modern awards, due to expire on 29 March 2021, to make an application by Monday, 22 March 2021.

Applications

[7] A number of applications have been filed by each of the Shop, Distributive & Allied Employees’ Association, Australian Services Union, United Workers Union, Australian Workers’ Union and the Construction, Forestry, Maritime, Mining and Energy Union to extend the operation of Schedule X in various awards from 29 March 2021 to 31 December 2021.

[8] Applications to extend the operation of Schedule X deal with the awards set out at Attachment A.

Consideration

[9] In the 16 September 2020 Statement, the Full Bench noted that the Coronavirus Economic Response Package (Jobkeeper Payments) Amendment Act 2020 received Royal Assent on 3 September 2020. The amendment extended the operation of the JobKeeper scheme, with some amendments, until 29 March 2021. The JobKeeper scheme has not been further extended beyond 29 March 2021.

[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 Covid-19 pandemic which has been regularly updated since it was first published on 25 March 2020. The most recent update to the Information Note was on 24 March 2021.

[11] Further, each State and Territory continues to have declarations and/or orders in place so as to enable enhanced public health and enforcement powers in connection with the pandemic, 9 which had been regularly renewed since, they were first made between January and March 2020.

[12] The applications filed seek to extend Schedule X until 31 December 2021.

[13] 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 self-isolate to do so. This will assist in limiting the spread of COVID-19 in workplaces and allowing businesses to continue to operate.

[14] 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.

[15] 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.

Next steps

[16] For the reasons set out above it is our provisional view that the variation of each of these awards to extend the operation of Schedule X until 31 December 2021 is necessary to ensure that these awards achieve the modern awards objective.

[17] Any submission opposing our provisional view should be filed by 4pm (AEDT) on Thursday 25 March 2021. Submissions should be sent to amod@fwc.gov.au in word version and include the relevant award title in the subject line.

[18] If any submissions are filed opposing our provisional view then a hearing will take place at 1pm (AEDT) on Friday 26 March 2021, by telephone. Parties wishing to appear at the hearing are to provide the name, direct number and organisation by 4pm (AEDT) Thursday 25 March 2021 to chambers.ross.j@fwc.gov.au.

[19] In the event that no submissions are filed opposing our provisional view then the hearing proposed will be vacated and we will vary each of the awards at Attachment A accordingly.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR728054>

Attachment A

 1   [2020] FWCFB 1837

 2   [2020] FWCFB 3444

 3   [2020] FWCFB 3490

4 [2020] FWCFB 4126

 5   [2020] FWCFB 4986

 6   [2020] FWCFB 5028

 7   [2020] FWCFB 5137

 8   [2021] FWC 1148

 9   Public Health (Emergency) Declaration Further Extension 2021 (No 1) [ACT]; Approval of extension of a major emergency declaration under section 23 of the Emergency Management Act 2004 [SA]; Extension of State of Emergency Declaration and Extension of Declaration (No.2) of a Public Health State of Emergency [WA]; Public Health (Further Extension of Declared Public Health Emergency–COVID-19) Regulation (No.6) 2020 [Qld]; Extension of Operation of a Declaration of Public Health Emergency [NT]; Section 15 – Extension of Emergency Declaration [Tas]; Extension of Declaration of a State of Emergency [VIC]. In NSW there are ministerial powers under section 7 of the Public Health Act 2010 to regulate by Order in the absence of an emergency being declared more broadly. A number of such Orders, specific to the COVID-19 pandemic, remain in force.