| [2022] FWC 282 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.158 - Application to vary or revoke a modern award
Australian Entertainment Industry Association t/a Live Performance Australia
(AM2022/2)
Cinema Industry | |
VICE PRESIDENT HATCHER |
SYDNEY, 11 FEBRUARY 2022 |
Award flexibility schedules – award specific COVID-19 schedules – Broadcasting, Recorded Entertainment and Cinemas 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 1 February 2022 the Australian Entertainment Industry Association trading as Live Performance Australia (LPA) lodged an application 1 to vary the Broadcasting, Recorded Entertainment and Cinemas Award 2020 (BREC Award) to re-enliven terms of the expired ‘Schedule X – Additional Measures During the COVID-19 Pandemic’ (Schedule X) in the BREC Award until 30 June 2022. Such provisions had previously expired on 29 March 2021. LPA seeks that the proposed variations operate from a date to be specified in February 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 BREC Award, on 8 April 2020. Schedule X was to operate from 8 April 2020 until 30 June 2020, unless extended. 2
[3] The operative date of Schedule X in the BREC Award was subsequently extended to 30 September 2020 3 and later until 29 March 20214.
[4] On 3 March 2021 Justice Ross issued a statement advising that Schedule X was due to cease operation in 74 modern awards on 29 March 2021 and inviting any interested party wishing to extend its operation to apply to the Commission by 4pm on Monday 22 March 2021. 5 No submission was received to extend Schedule X in the BREC Award, and it ceased to operate after this date.
[5] Following this, the operative date of Schedule X in various other modern awards was extended again until 31 December 2021. 6
[6] On 20 December 2021 I issued a decision extending the unpaid pandemic leave provisions in Schedule X in 72 modern awards in which Schedule X was due to expire on 31 December 2021. 7 These provisions were extended until 30 June 2022. I also reinstated the pandemic leave provisions of Schedule X in the Mobile Crane Hiring Award 2020 until the same date. The annual leave provisions were not extended for the reasons given in paragraphs [11] – [13] of that decision.
[7] In a further decision I 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. 8
[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 Fair Work Act 2009 (FW Act).
[9] On 9 February 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 confirmed that it only sought the reinstatement of the unpaid pandemic leave provisions of Schedule X (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. The MEAA indicated that it supported LPA’s application on this basis.
[10] I have formed the provisional view that LPA’s application to reinstate the unpaid pandemic leave provisions of Schedule X in the BREC Award 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 18 February 2022 to [email protected] outlining the reasons for its opposition.
[12] In the event that no submissions are filed in accordance with the above direction, the BREC Award will be varied in line with my provisional view effective from 21 February 2022.
VICE PRESIDENT
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