[2021] FWCFB 1621
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, 26 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 issued a decision1 (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 operative date of Schedule X in various awards was subsequently extended to 30
September 20202 and later extended again until 29 March 2021.3
[3] On 3 March 2021 a Statement4 invited interested parties wishing to extend the
operation of Schedule X in the 74 modern awards to make an application by Monday, 22
March 2021. Applications were filed by each of the following organisations to extend clauses
X.1 and X.2.1(d) of Schedule X in some 57 awards, from 29 March 2021 to 31 December
2021:
the Shop, Distributive & Allied Employees’ Association;
Australian Services Union;
United Workers Union;
Australian Workers’ Union; and
1 [2020] FWCFB 1837
2 [2020] FWCFB 3490
3 [2020] FWCFB 5137
4 [2021] FWC 1148
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/awardmod/variations/2020/2020fwc1148.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb5137.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb3490.htm
http://www.fwc.gov.au/decisionssigned/html/2020fwcfb1837.htm
[2021] FWCFB 1621
Construction, Forestry, Maritime, Mining and Energy Union;
[4] Each of the applications only seeks to extend 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.
[5] On 24 March 2021 we issued a decision5 setting out our provisional view that the
variation of each of the awards in Attachment A to extend the operation of Schedule X until
31 December 2021 is necessary to ensure that these awards achieve the modern awards
objective (the 24 March Decision). Our provisional view concerned the extension of all of
the provisions in Schedule X. Interested parties were invited to file submissions in response to
the provisional view by 4pm (AEDT) on Thursday 25 March 2021.
[6] One submission was received from the Australian Council of Trade Unions on 25
March 2021. The relevant parts of that correspondence are as follows:
‘The applications recently lodged with the Commission to extend the duration of entitlements
contained Schedules X and Y in modern awards (save for that lodged by the Victorian
Ambulance Union) were prepared jointly by ourselves and our affiliates. The grounds stated in
applications and the draft determinations annexed thereto were expressed to relate to the
extension of the duration of existing entitlements to unpaid pandemic leave and paid pandemic
leave (where relevant), while allowing the entitlement to take annual leave at half pay to
sunset on 29 March 2021.
It is not clear to us whether the provisional views concerning Schedule X stated in the
decisions of the Commission yesterday in [2021] FWCFB 1601 and [2021] FWCFB 1596
relate to only the unpaid leave entitlement in that Schedule or the entirety of that Schedule.
Irrespective of this, it is not our intention to contest the adoption of the provisional view in
relation to Schedule X.’
[7] We note that the ACTU does not oppose the extension of Schedule X, in its entirety.
Further, no submissions were received opposing our provisional view.
[8] As mentioned above, our provisional view was expressed in relation to the extension
of all of the provisions in Schedule X. We appreciate that the applications filed only seek to
extend the operation of the unpaid pandemic leave component of Schedule X.
[9] Subject to according interested parties procedural fairness, we are not required to
make a decision in relation to an application in the terms applied for. In the 24 March 2021
Decision we said:
‘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.’6 (emphasis added)
5 [2021] FWCFB 1601
6 [2021] FWCFB 1601 at [16]
[2021] FWCFB 1621
[10] It is clear on its face that our provisional view related to ‘the operation of Schedule X’.
Had we intended to only extend the operation of part of the Schedule (that is unpaid pandemic
leave, as sought in the variations) we would have said so.
[11] In the 24 March Decision we made it clear that in the event that no submissions were
filed opposing the provisional view; the Commission would vary each of the relevant awards
to extend the operation of Schedule X to 31 December 2021.
[12] The observations made in the April 2020 Decision regarding the basis for the initial
insertion of Schedule X into the relevant awards remain apposite.
[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] In relation to the flexibility to take twice as much annual leave at half pay we note that
clause X.2.2 in Schedule X is a term permitted by s.55(4). It is ancillary or incidental to the
operation of an entitlement under the NES (namely, the rate of pay required by s.90). Further,
the effect of the term is not detrimental to an employee in any respect, when compared to the
NES.
[15] As noted in the April 2020 Decision, the flexibility to take twice as much annual leave
at half pay will facilitate the retention of employees in employment during the pandemic and
will have a positive impact on business.
[16] We are satisfied 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] Variation determinations for each of the 57 awards in Attachment A will be issued
later today.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR728076
[2021] FWCFB 1621
4
Attachment A
Award title Award code
1. Airline Operations-Ground Staff Award 2020 MA000048
2. Alpine Resorts Award 2020 MA000092
3. Aluminium Industry Award 2020 MA000060
4. Amusement, Events and Recreation Award 2020 MA000080
5. Animal Care and Veterinary Services Award 2020 MA000118
6. Aquaculture Industry Award 2020 MA000114
7. Asphalt Industry Award 2020 MA000054
8. Building and Construction General On-Site Award 2020 MA000020
9. Business Equipment Award 2020 MA000021
10. Car Parking Award 2020 MA000095
11. Cement, Lime and Quarrying Award 2020 MA000055
12. Cemetery Industry Award 2020 MA000070
13. Children's Services Award 2010 MA000120
14. Cleaning Services Award 2020 MA000022
15. Contract Call Centres Award 2020 MA000023
16. Corrections and Detention (Private Sector) Award 2020 MA000110
17. Cotton Ginning Award 2020 MA000024
18. Dry Cleaning and Laundry Industry Award 2020 MA000096
19. Fast Food Industry Award 2010 MA000003
20. Fitness Industry Award 2020 MA000094
21. Food, Beverage and Tobacco Manufacturing Award 2020 MA000073
22. Funeral Industry Award 2020 MA000105
23. Gardening and Landscaping Services Award 2020 MA000101
24. General Retail Industry Award 2020 MA000004
25. Hair and Beauty Industry Award 2010 MA000005
26. Horse and Greyhound Training Award 2020 MA000008
27. Horticulture Award 2020 MA000028
28. Hospitality Industry (General) Award 2020 MA000009
29. Joinery and Building Trades Award 2020 MA000029
30. Labour Market Assistance Industry Award 2020 MA000099
31. Legal Services Award 2020 MA000116
[2021] FWCFB 1621
5
Award title Award code
32. Local Government Industry Award 2020 MA000112
33. Manufacturing and Associated Industries and Occupations Award
2020
MA000010
34. Meat Industry Award 2020 MA000059
35. Nursery Award 2020 MA000033
36. Pastoral Award 2020 MA000035
37. Pest Control Industry Award 2020 MA000097
38. Pharmaceutical Industry Award 2020 MA000069
39. Poultry Processing Award 2020 MA000074
40. Premixed Concrete Award 2020 MA000057
41. Professional Diving Industry (Recreational) Award 2020 MA000109
42. Racing Clubs Events Award 2020 MA000013
43. Racing Industry Ground Maintenance Award 2020 MA000014
44. Registered and Licensed Clubs Award 2020 MA000058
45. Restaurant Industry Award 2020 MA000119
46. Salt Industry Award 2020 MA000107
47. Seafood Processing Award 2020 MA000068
48. Security Services Industry Award 2020 MA000016
49. Silviculture Award 2020 MA000040
50. Storage Services and Wholesale Award 2020 MA000084
51. Sugar Industry Award 2020 MA000087
52. Textile, Clothing, Footwear and Associated Industries Award 2020 MA000017
53. Timber Industry Award 2020 MA000071
54. Waste Management Award 2020 MA000043
55. Water Industry Award 2020 MA000113
56. Wine Industry Award 2020 MA000090
57. Wool Storage, Sampling and Testing Award 2020 MA000044
