| [2022] FWC 79 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.158—Application to vary or revoke a modern award
Australian Entertainment Industry Association
(AM2022/1)
Live performance industry | |
VICE PRESIDENT HATCHER |
SYDNEY, 27 JANUARY 2022 |
Award flexibility schedules – award specific COVID-19 schedules – Live Performance Award 2020 – seeking to reinstate the terms of Schedule X—Additional measures during the COVID-19 pandemic to operate until 30 June 2022 – provisional view.
[1] On 11 January 2022, the Australian Entertainment Industry Association trading as Live Performance Australia (LPA) lodged an application 1 to vary the Live Performance Award 2020 (Live Performance Award) to reinstate the terms of the expired ‘Schedule X—Additional Measures During the COVID-19 Pandemic’ (Schedule X) in the Live Performance Award until 30 June 2022. Such provisions had previously expired on 30 June 2021. LPA seeks that the proposed variations operate from a date to be specified in January 2022 until 30 June 2022.
[2] Schedule X, which provides an entitlement to unpaid ‘pandemic leave’ and the flexibility to take twice as much annual leave at half pay (annual leave provisions), was inserted into 99 modern awards, including the Live Performance Award, on 8 April 2020. Schedule X was to operate from 8 April 2020 until 30 June 2020, unless extended. 2
[3] Following an application made by LPA 3 on 26 June 2020, the operation of Schedule X in the Live Performance Award was extended until 30 June 2021.4 However, no further application was made to extend the operation of the schedule, and it ceased to operate after this date.
[4] On 10 December 2021, subscribers to the Commission’s subscription service were notified that Schedule X was due to cease operation after 31 December 2021 in 73 modern awards, and that the period of operation could be extended on application. The Commission subsequently received applications from various unions to extend the operation of the pandemic leave provisions of Schedule X in all 73 awards in which they were due to expire. Additionally, the Commission received an application by the Construction, Forestry, Maritime, Mining and Energy Union to reinstate the pandemic leave provisions of Schedule X in the Mobile Crane Hiring Award 2020, which had already expired.
[5] The applications were unopposed.
[6] On 20 December 2021, I issued a decision 5 extending the operation of the pandemic leave provisions of Schedule X in 72 awards until 30 June 2022 and reinstating the pandemic leave provisions of Schedule X in the Mobile Crane Hiring Award 2020 until the same date. In that decision, I also declined to act on a proposal advanced by the Australian Industry Group and the Australian Chamber of Commerce and Industry that the Commission act on its own initiative under s 157(3)(a) of the Fair Work Act 2009 (FW Act) to also extend the operation of the annual leave provisions of Schedule X.
[7] In a further decision issued on 21 December 2021, the unpaid pandemic leave provisions in Schedule X of the Plumbing and Fire Sprinklers Award 2020 were also extended until 30 June 2022. 6
[8] As with the applications to extend Schedule X lodged in December 2021, the hearing and determination of this application has been allocated by the President of the Commission to me pursuant to ss 616(3D)(b) and 582 of the FW Act.
[9] In the form in which it was filed, LPA’s application sought the reinstatement of both the unpaid pandemic leave provisions and the annual leave provisions in the expired Schedule X of the Live Performance Award. On 27 January 2022, I conducted a directions hearing in respect of LPA’s application, which was attended by representatives of LPA and the Media Entertainment and Arts Alliance (MEAA). At that directions hearing, LPA sought leave to amend its application so that only the unpaid pandemic leave provisions of Schedule X would be reinstated (and not the annual leave provisions). In this way, LPA sought to align its position with the outcome of the decisions of 20 and 21 December 2021 referred to above. The MEAA did not oppose the amendment, and I allowed it to be made. The MEAA indicated that it supported LPA’s application in its amended form.
[10] I have formed the provisional view that LPA’s application, as amended, to reinstate the unpaid pandemic leave provisions of Schedule X until 30 June 2022 should be granted because the proposed variation is necessary to meet the modern awards objective. I have reached this provisional view for the same reasons stated in paragraphs [8]-[9] of my decision of 20 December 2021, which are not necessary to repeat here. I have also taken into account the MEAA’s consent to the amended application.
[11] Any interested party which opposes my provisional view shall file submissions by 4.00pm AEDT on 1 February 2022 to amod@fwc.gov.au outlining the reasons for its opposition.
[12] In the event that no submissions are filed in accordance with the above direction, the Live Performance Award will be varied in line with my provisional view effective from 2 February 2022.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR737567>
1 Application of LPA, 11 January 2022