1
Fair Work Act 2009
s.157—FWC may vary etc. modern awards if necessary to achieve modern awards objective
COVID-19 pandemic – Schedule X and
(AM2020/34 and others)
Clerks-Private Sector Award 2020
(AM2020/30)
Various industries
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT MELBOURNE, 26 JUNE 2020
Section 157(3) of the Fair Work Act 2009 (Cth) – additional measures during COVID-19
pandemic – Schedule X-Additional measures during the COVID-19 pandemic – period of
operation expires on 30 June 2020 – Clerks-Private Sector Award 2020 – variation of
Schedule 1.
Schedule X
[1] On 1 April 2020 a Full Bench issued a Statement1 setting out its provisional view that
a number of modern awards be varied to insert a new 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.
[2] On 8 April 2020 the Full Bench issued a decision2 varying 99 modern awards to insert
Schedule X. A list of the 99 awards is at Attachment A.
[3] Schedule X commenced operation on 8 April 2020 and operates until 30 June 2020.
The operation of Schedule X can be extended on application.
[4] A Statement issued on 23 June 20203, indicated that the Commission did not propose
to vary Schedule X to extend its operation past 30 June 2020, on its own motion. Parties
wishing to extend the operation of the schedule were invited to make an application by Friday
26 June 2020.
1 [2020] FWCFB 1760
2 [2020] FWCFB 1837
3 [2020] FWCFB 3281
[2020] FWCFB 3378
STATEMENT
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb1837.htm
[2020] FWCFB 3378
2
[5] A number of applications have since been filed to extend the operation of Schedule X
from 30 June 2020 to 31 July 2020, in various awards.
[6] Applications to extend the operation of Schedule X deal with the following awards:
Aboriginal Community Controlled Health Services Award 2020
Aged Care Award 2010
Air Pilots Award 2020
Ambulance & Patient Transport industry Award 2020
Fast Food Industry Award 2010
General Retail Industry Award 2010
Hair and Beauty Industry Award 2010
Health Professionals and Support Services Award 2010
Live Performance Award 2010
Medical Practitioners Award 2020
Nurses Award 2010
Pharmacy Industry Award 2010
Storage Services and Wholesale Award 2020
Supported Employment Services Award 2010
[7] In an application filed on 26 June 2020 (AM2020/32), the ACTU sought the following
directions:
1. That the applicant serve the attached application by e-mail on the persons and
organisations identified as an “other party” in this application.
2. That, upon completion of the above steps, this application be deemed served.
3. That the FWC list a directions hearing in relation to this matter, for Monday 29
June 2020.
4. That the FWC extend the date by which parties should make an application to
extend “Schedule X” (as referred to in paragraph 4 of its statement of 23 June
2020 ([2020] FWCFB 3281).
5. That the FWC issue such further directions as are required following the
directions hearing on Monday 29 June.
[8] The ACTU’s application is listed for Mention by telephone on Monday 29 June 2020
at 10am.
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb3281.htm
[2020] FWCFB 3378
3
Clerks – Private Sector Award
[9] In a decision4 issued on 28 March 2020, we said:
[93] We note that the terms in Schedule I may be included in a modern award pursuant to
ss.136(1)(a) and (c), and ss.139(1)(a), (c), (h) and (j) and s.142(1) of the Act.
[94] In the 26 March Statement we expressed the provisional view, taking into account the
relevant s.134 considerations, that the variation of the Clerks award as proposed in the Joint
Application is necessary to achieve the modern awards objective. We confirm the provisional
view and will make the variation to the Clerks award.
[95] We are satisfied that the variation proposed is necessary to achieve the modern awards
objective (s.157) and in so deciding we have taken into account the considerations in
s.134(1)(a) to (h) insofar as they are relevant. Further, once varied the Clerks award will only
include terms to the extent necessary to achieve the modern awards objective (s.138).
[96] For the reasons set out above we will make the variation determination sought. The
determination will come into operation on 28 March 2020. As required by s.165(3) the
determination does not take effect in relation to a particular employee until the start of the
employee’s first full pay period that starts on or after the day the determination comes into
operation.
[10] Clause I.1.1 of Schedule I to the Clerks—Private Sector Award 2010 states:
‘I.1.1 Schedule I operates from 28 March 2020 until 30 June 2020. The period of
operation can be extended on application to the Fair Work Commission.’
[11] On 19 June 2020, an application to vary Schedule 1 of the Clerks – Private Sector
Award 2020 (the Clerks Award) was filed jointly by Australian Industry Group (Ai Group)
and the Australian Chamber of Industry and Commerce (ACCI). A revised draft
determination was filed on 25 June 2020 (the Application).
[12] The Application seeks to vary Schedule I, as inserted on 28 March 2020, in a number
of ways. Schedule I, with the proposed variations marked up in red, is set out at Attachment
B. The revised draft determination filed on 25 June 2020 is set out at Attachment C.
[13] Conferences were held on 23 and 24 June 2020, before Commissioner Bisset in an
effort to resolve some union concerns in relation to the Application. No resolution was
reached.
Hearings – Schedule X and Clerks – Private Sector Award
[14] The application in respect of the Clerks-Private Sector Award and the various
Schedule X applications are listed for hearing via telephone before us on Tuesday 30 June
2020 commencing at 12noon. Parties wishing to attend the hearing are to provide the name,
direct number and organisation by 12noon Monday, 29 June 2020 to
chambers.ross.j@fwc.gov.au.
4 [2020] FWCFB 1690
mailto:chambers.ross.j@fwc.gov.au
https://www.fwc.gov.au/documents/awardmod/variations/2020/am202030-draft-det-acci-aig-250620.pdf
https://www.fwc.gov.au/documents/awardmod/variations/2020/am202030-draft-det-acci-aig-250620.pdf
[2020] FWCFB 3378
4
[15] To facilitate the hearing, Commission staff have prepared the following Information
Notes:
COVID-19 situation update June 2020;
Clerks Award and COVID-19.
[16] It is our preliminary view that there is a degree of overlap between the various
applications we have listed for hearing. Each application arises out of the COFID-19
pandemic and each application seeks to extend the date of operation of existing award
schedules. At this stage there is no indication as to whether any of the Schedule X
applications will be opposed.
[17] To facilitate the efficient determination of these matters we direct the relevant peak
bodies (the ACTU, ACCI and Ai Group) to confer with a view to arriving at a consent
position in respect of all of the matters before us. The Commission is available to facilitate
such discussions, upon request.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR720545
https://www.fwc.gov.au/awards-and-agreements/awards/award-modernisation/variation-applications/AM2020/30?type=variation
https://www.fwc.gov.au/documents/resources/covid-19-information/information-note-covid-19-situation-update-2020-06-26.pdf
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ATTACHMENT A: Modern Awards varied to insert Schedule X
Aboriginal Community Controlled Health Services Award 2010
Aged Care Award 2010
Air Pilots Award 2010
Aircraft Cabin Crew Award 2010
Airline Operations-Ground Staff Award 2010
Airport Employees Award 2010
Alpine Resorts Award 2010
Aluminium Industry Award 2020
Ambulance and Patient Transport Industry Award 2020
Amusement, Events and Recreation Award 2010
Animal Care and Veterinary Services Award 2020
Aquaculture Industry Award 2020
Architects Award 2010
Asphalt Industry Award 2010
Banking, Finance and Insurance Award 2020
Book Industry Award 2020
Broadcasting, Recorded Entertainment and Cinemas Award 2010
Business Equipment Award 2010
Car Parking Award 2020
Cement, Lime and Quarrying Award 2010
Cemetery Industry Award 2020
Children’s Services Award 2010
Cleaning Services Award 2010
Clerks - Private Sector Award 2010
Commercial Sales Award 2010
Concrete Products Award 2010
Contract Call Centres Award 2010
Corrections and Detention (Private Sector) Award 2020
Cotton Ginning Award 2020
Dry Cleaning and Laundry Industry Award 2010
Educational Services (Post-Secondary Education) Award 2010
Educational Services (Schools) General Staff Award 2010
Educational Services (Teachers) Award 2010
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Fast Food Industry Award 2010
Fitness Industry Award 2010
Food, Beverage and Tobacco Manufacturing Award 2010
Funeral Industry Award 2010
Gardening and Landscaping Services Award 2020
General Retail Industry Award 2010
Graphic Arts, Printing and Publishing Award 2010
Hair and Beauty Industry Award 2010
Health Professionals and Support Services Award 2010
Higher Education Industry-Academic Staff-Award 2010
Higher Education Industry-General Staff-Award 2010
Horse and Greyhound Training Award 2010
Horticulture Award 2010
Hospitality Industry (General) Award 2010
Journalists Published Media Award 2010
Labour Market Assistance Industry Award 2010
Legal Services Award 2020
Live Performance Award 2010
Local Government Industry Award 2010
Mannequins and Models Award 2010
Manufacturing and Associated Industries and Occupations Award 2010
Marine Tourism and Charter Vessels Award 2010
Market and Social Research Award 2020
Meat Industry Award 2010
Medical Practitioners Award 2020
Miscellaneous Award 2010
Nursery Award 2020
Nurses Award 2010
Passenger Vehicle Transportation Award 2010
Pastoral Award 2010
Pest Control Industry Award 2010
Pharmaceutical Industry Award 2010
Pharmacy Industry Award 2010
Poultry Processing Award 2010
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Premixed Concrete Award 2020
Professional Diving Industry (Recreational) Award 2010
Professional Employees Award 2010
Racing Clubs Events Award 2010
Racing Industry Ground Maintenance Award 2020
Rail Industry Award 2010
Real Estate Industry Award 2020
Registered and Licensed Clubs Award 2010
Restaurant Industry Award 2010
Road Transport (Long Distance Operations) Award 2010
Road Transport and Distribution Award 2010
Salt Industry Award 2010
Seafood Processing Award 2020
Security Services Industry Award 2010
Silviculture Award 2020
Social, Community, Home Care and Disability Services Industry Award 2010
Sporting Organisations Award 2020
State Government Agencies Award 2020
Storage Services and Wholesale Award 2010
Sugar Industry Award 2010
Supported Employment Services Award 2010
Surveying Award 2020
Telecommunications Services Award 2010
Textile, Clothing, Footwear and Associated Industries Award 2010
Timber Industry Award 2010
Transport (Cash in Transit) Award 2010
Travelling Shows Award 2020
Vehicle Manufacturing, Repair, Services and Retail Award 2010
Waste Management Award 2010
Water Industry Award 2020
Wine Industry Award 2010
Wool Storage, Sampling and Testing Award 2010
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ATTACHMENT B
Schedule I—Award Flexibility During the COVID-19 Pandemic
I.1 The provisions of Schedule I are aimed at preserving the ongoing viability of
businesses and preserving jobs during the COVID-19 pandemic and not to set any
precedent in relation to award entitlements after its expiry date.
I.1.1 Schedule I operates from 28 March 2020 until 30 September 202030 June 2020. The
period of operation can be extended on application to the Fair Work Commission.
I.1.2 Any direction or request given by an employer under Schedule I must be given in
writing and does not apply to the employee if the direction is unreasonable in all of
the circumstances.
I.2 During the operation of Schedule I, the following provisions apply:
I.2.1 Operational flexibility
(a) As directed by their employer, where necessary an employee will perform any
duties that are within their skill and competency regardless of their
classification under clause 15—Classifications and Schedule B—
Classifications, provided that the duties are safe, and that the employee is
licensed and qualified to perform them.
(b) An employer must not reduce an employee’s pay if the employee is directed to
perform duties in accordance with clause I.2.1.
I.2.2 Part-time employees working from home
Instead of clause 11.5 (Part-time employment), an employer is required to roster a
part-time employee who is working from home by agreement with the employer, for
a minimum of 2 consecutive hours on any shift.
I.2.3 Casual employees working from home
Instead of clause 12.4 (Casual employment), an employer must pay a casual
employee who is working from home by agreement with the employer, a minimum
payment of 2 hours’ work at the appropriate rate.
I.2.4I.2.1 Ordinary hours of work for employees working from home
(a) Instead of clause 25.1(b) (Ordinary hours of work (other than shiftworkers), for
employees working from home by agreement with the employer where an
employee requests and the employer agrees, the spread of ordinary hours of
work for day workers is between 6.00 am and 11.00 pm, Monday to Friday,
and between 7.00 am and 12.30 pm on Saturday.
(b) Day workers are not shiftworkers for the purposes of any penalties, loadings or
allowances under the award, including for the purposes of clause 28.
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(c) The facilitative provision in clause 25.2 (Ordinary hours of work (other than
shiftworkers)), which allows the spread of hours to be altered, will not operate
for the employees referred to in clause I.2.4(a)(e).
I.2.5I.2.2 Agreed temporary reduction in ordinary hours
(a) An employer and the full-time and part-time employees in a workplace or
section of a workplace, may agree to temporarily reduce ordinary hours of
work for the employees in the workplace or section for a specified period while
Schedule I is in operation.
(b) At least 75% of the full-time and part-time employees in the relevant
workplace or section must approve any agreement to temporarily reduce
ordinary hours.
(c) For the purposes of clause I.2.25(a), ordinary hours of work may be
temporarily reduced:
(i) For full time employees, to not fewer than 75% of the full-time ordinary
hours applicable to an employee immediately prior to the implementation
of the temporary reduction in ordinary hours.
(ii) For part-time employees, to not fewer than 75% of the part-time
employee’s agreed hours immediately prior to the implementation of the
temporary reduction in ordinary hours.
(d) Where a reduction in hours takes effect under clause I.2.25(a), the employee’s
ordinary hourly rate will be maintained but the weekly wage will be reduced by
the same proportion.
(e) Nothing in Schedule I prevents an employer and an individual employee
agreeing in writing (including by electronic means) to reduce the employee’s
hours or to move the employee temporarily from full-time to part-time hours of
work, with a commensurate reduction in the minimum weekly wage.
(f) If an employee’s hours have been reduced in accordance with clause I.2.25(a):
(i) the employer must not unreasonably refuse an employee request to
engage in reasonable secondary employment; and
(ii) the employer must consider all reasonable employee requests for
training, professional development and/or study leave.
(g) For the purposes of clause I.2.25(a), where there is any reduction in the
ordinary hours of work for full-time or part-time employees in a workplace or
section during the period Schedule I is in operation, all relevant accruals and all
entitlements on termination of employment will continue to be based on each
employee’s weekly ordinary hours of work prior to the commencement of
Schedule I.
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(h) For the purposes of clause I.2.25(a), the approval of employees shall be
determined by a vote of employees. In order for the vote to be valid, the
employer must comply with the following requirements:
(i) Where any of the employees are known to be members of the Australian
Services Union or another organisation, the ASU or other organisation
shall be informed before the vote takes place.
(ii) Prior to the vote of employees, the employer shall provide the employees
with the contact details of the ASU, should they wish to contact the ASU
for advice; and
(iii) The employer must notify the Fair Work Commission by emailing
clerksaward@fwc.gov.au that the employer proposes to conduct a vote
under Schedule I. The employer shall provide the work email addresses
of the employees who will be participating in the vote, to the
Commission. The Commission will then distribute the ASU COVID-19
Information Sheet to the employees prior to the vote. The Commission
shall list the name of the business on a register which will be accessible
to the ASU, upon request, for the period when Schedule I is in operation.
(iv) The vote shall not take place until at least 24 hours after the requirements
of clause I.2.5(h)(i), (ii) and (iii) have been met.
(i) This clause only applies to employers who implemented a temporary reduction
in ordinary hours under Schedule I in this Award before 30 June 2020.
I.2.6 Annual leave
(a) Employers and individual employees may agree to take up to twice as much
annual leave at a proportionately reduced rate for all or part of any agreed or
directed period away from work, including any close-down.
(b) Instead of clauses 29.6, 29.7 and 29.8 (Annual leave), an employer may direct
an employee to take any annual leave that has accrued, subject to considering
the employee’s personal circumstances, by giving at least one week’s notice, or
any shorter period of notice that may be agreed. A direction to take annual
leave shall not result in an employee having less than 2 weeks of accrued
annual leave remaining.
I.2.3 Annual leave
(a) Subject to clause I.2.3(f) and despite clauses 32.6, 32.7 and 32.8 (Annual
leave), an employer may, subject to considering an employee’s personal
circumstances, request an employee to take paid annual leave, provided that the
request does not result in the employee retaining a balance of less than 2 weeks
annual leave after the leave is taken. Such a request must be made a minimum
of 72 hours before the date on which the annual leave is to commence.
mailto:clerksaward@fwc.gov.au
11
(b) An employee must consider and may not unreasonably refuse a request to take
annual leave made pursuant to clause I.2.3.
(c) Clauses I.2.3(a) and (b) do not prevent an employer and an employee agreeing
to the employee taking annual leave at any time.
(d) Employers and individual employees may agree to take up to twice as much
annual leave at a proportionately reduced rate for all or part of any agreed or
directed period away from work, including any close-down.
(e) The period of annual leave must commence before 30 September 2020 but may
end after this date.
(f) An employer can only request that an employee take annual leave pursuant to
this clause if the request is made for reasons attributable to the COVID-19
pandemic or Government initiatives to slow the transmission of COVID-19 and
to assist the employer to avoid or minimise the loss of employment.
(g) An employee is not required to take leave under clause I.2.3 unless the
employee is advised in writing that the employer consents to a dispute about
whether the employer’s request is reasonable in all the circumstances being
settled by the Fair Work Commission through arbitration in accordance with
clause 40.5— Dispute Resolution and section 739(4) of the Act.
I.2.7 Close down
(a) Instead of clause 29.5 (Annual leave), and subject to clause I.2.7(b), an
employer may:
(i) require an employee to take annual leave as part of a close-down of its
operations by giving at least one week’s notice, or part of its operations,
or any shorter period of notice that may be agreed; and
(ii) where an employee who has not accrued sufficient leave to cover part or
all of the close-down, the employee is to be allowed paid annual leave for
the period for which they have accrued sufficient leave and given unpaid
leave for the remainder of the closedown.
(b) Clause I.2.7(a) does not permit an employer to require an employee to take
leave for a period beyond the period of operation of Schedule I.
(c) Where an employee is placed on unpaid leave pursuant to clause I.2.7(a), the
period of unpaid leave will count as service for the purposes of relevant award
and NES entitlements.
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ATTACHMENT C
DRAFT DETERMINATION
Fair Work Act 2009
s.157—FWC may vary etc. modern awards if necessary to achieve modern awards objective
The Australian Industry Group
Australian Chamber of Commerce and Industry;
(AM2020/XX)
CLERKS—PRIVATE SECTOR AWARD 2020
[MA000002]
Clerical industry
JUSTICE ROSS, PRESIDENT
XX
XX MELBOURNE, XX JUNE 2020
Application to vary the Clerks—Private Sector Award 2020.
A. Further to decision [[2020] FWCFB XX] issued by the Full Bench on XX June 2020,
the above award is varied as follows:
1. By deleting the words “until 30 June 2020” in clause I.1.1 in Schedule I – Award
Flexibility During the COVID-19 Pandemic, and replacing them with the words “until
30 September 2020”.
2. By adding a new clause I.1.2 in Schedule I - Flexibility During the COVID-19
Pandemic as follows:
I.1.2 Any direction or request given by an employer under Schedule I must
be given in writing and does not apply to the employee if the direction
is unreasonable in all of the circumstances.
3. By deleting clause I.2.1 – Operational flexibility, clause I.2.2 – Part-time employees
working from home and clause I.2.3 – Casual employees working from home.
4. By renumbering clause I.2.4 – Ordinary hours of work for employees working from
home, as clause I.2.1, and changing the cross-reference “I.2.5(e)” to “I.2.1(a)”.
5. By renumbering clause I.2.5 – Agreed temporary reduction in ordinary hours, as
clause I.2.2, with consequential renumbering of the cross-references in the clause.
AUSTRALIA FairWork Commission
13
6. By adding a new clause I.2.2(h) as follows:
(h) This clause only applies to employers who implemented a temporary
reduction in ordinary hours under Schedule I in this Award before 30
June 2020.
7. By deleting clause I.2.6 – Annual leave, and adding the following clause I.2.3 –
Annual leave:
I.2.3 Annual leave
(a) Subject to clause I.2.3(f) and despite clauses 32.6, 32.7 and
32.8 (Annual leave), an employer may, subject to considering
an employee’s personal circumstances, request an employee to
take paid annual leave, provided that the request does not result
in the employee retaining a balance of less than 2 weeks annual
leave after the leave is taken. Such a request must be made a
minimum of 72 hours before the date on which the annual leave
is to commence.
(b) An employee must consider and may not unreasonably refuse a
request to take annual leave made pursuant to clause I.2.3.
(c) Clauses I.2.3(a) and (b) do not prevent an employer and an
employee agreeing to the employee taking annual leave at any
time.
(d) Employers and individual employees may agree to take up to
twice as much annual leave at a proportionately reduced rate for
all or part of any agreed or directed period away from work,
including any close-down.
(e) The period of annual leave must commence before 30
September 2020 but may end after this date.
(f) An employer can only request that an employee take annual
leave pursuant to this clause if the request is made for reasons
attributable to the COVID-19 pandemic or Government
initiatives to slow the transmission of COVID-19 and to assist
the employer to avoid or minimise the loss of employment.
(g) An employee is not required to take leave under clause I.2.3
unless the employee is advised in writing that the employer
consents to a dispute about whether the employer’s request is
reasonable in all the circumstances being settled by the Fair
Work Commission through arbitration in accordance with
clause 40.5— Dispute Resolution and section 739(4) of the Act.
8. By deleting clause I.2.7 – Close-down.
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B. This determination comes into effect on 30 June 2020. In accordance with s.165(3) of
the Fair Work Act 2009 this determination does not take effect until the start of the first full
pay period that starts on or after 30 June 2020.
PRESIDENT
