| [2020] FWCFB 3490 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.157 - FWC may vary etc. modern awards if necessary to achieve modern awards objective
Applications to vary Schedule X
(AM2020/34 and others)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 2 JULY 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.
[1] On 8 April 2020 a Full Bench 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] A Statement 2 issued on 23 June 2020 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.
[3] On 29 and 30 June 2020, a number of applications were filed, to extend the operation of Schedule X in respect of the following awards:
• Airline Operations – Ground Staff Award 2020 (AM2020/57)
• Airport Employees Award 2020 (AM2020/53)
• Alpine Resorts Award 2020 (AM2020/80)
• Aluminium Industry Award 2020 (AM2020/80)
• Amusement, Events and Recreation Award 2020 (AM2020/80)
• Animal Care and Veterinary Services Award 2020 (AM2020/55 and AM2020/61)
• Aquaculture Industry Award 2020 (AM2020/80)
• Architects Award 2020 (AM2020/54)
• Asphalt Industry Award 2020 (AM2020/80)
• Banking, Finance and Insurance Industry Award 2020 (AM2020/84)
• Broadcasting, Recorded Entertainment and Cinemas Award 2010 (AM2020/79)
• Business Equipment Award 2020 (AM2020/57)
• Car Parking Award 2020 (AM2020/63)
• Cement, Lime and Quarrying Award 2020 (AM2020/80)
• Cemetery Industry Award 2020 (AM2020/80)
• Children’s Services Award 2010 (AM2020/65)
• Cleaning Services Award 2020 (AM2020/67)
• Commercial Sales Award 2020 (AM2020/68)
• Contract Call Centres Award 2020 (AM2020/57)
• Corrections and Detentions (Private Sector) Award 2020 (AM2020/69 and AM2020/80)
• Cotton Ginning Award 2020 (AM2020/80)
• Dry Cleaning and Laundry Industry Award 2020 (AM2020/81)
• Educational Services (Post-Secondary Education) Award 2020 (AM2020/82)
• Electrical Power Industry Award 2020 (AM2020/58)
• Fitness Industry Award 2010 (AM2020/80)
• Food, Beverage and Tobacco Manufacturing 2010 (AM2020/70)
• Funeral Industry Award 2010 (AM2020/71)
• Gardening and Landscaping Services Award 2020 (AM2020/80)
• Higher Education Industry-General Staff-Award 2020 (AM2020/57)
• Horse and Greyhound Training Award 2020 (AM2020/80)
• Horticulture Award 2010 (AM2020/80)
• Hospitality Industry (General) Award 2020 (AM2020/72)
• Journalists Published Media Award 2020 (AM2020/79)
• Labour Market Assistance Industry Award 2020 (AM2020/57)
• Legal Services Award 2020 (AM2020/57)
• Local Government Industry Award 2020 (AM2020/56 and AM2020/57)
• Meat Industry Award 2020 (AM2020/80)
• Miscellaneous Award 2020 (AM2020/73)
• Nursery Award 2020 (AM2020/80)
• Pastoral Award 2010 (AM2020/80)
• Pest Control Industry Award 2020 (AM2020/80)
• Pharmaceutical Industry Award 2010 (AM2020/80)
• Poultry Processing Award 2020 (AM2020/80)
• Premixed Concrete Award 2020 (AM2020/80)
• Professional Diving Industry (Recreational) Award 2020 (AM2020/80)
• Professional Employees Award 2020 (AM2020/59)
• Racing Clubs Events Award 2010 (AM2020/80)
• Racing Industry Ground Maintenance Award 2020 (AM2020/80)
• Rail Industry Award 2020 (AM2020/57)
• Registered and Licensed Clubs Award 2010 (AM2020/75)
• Restaurant Industry Award 2020 (AM2020/74)
• Salt Industry Award 2010 (AM2020/80)
• Seafood Processing Award 2020 (AM2020/80)
• Security Services Industry Award 2020 (AM2020/76)
• Silviculture Award 2020 (AM2020/80)
• State Government Agencies Award 2020 (AM2020/60)
• Sugar Industry Award 2020 (AM2020/80)
• Textile, Clothing, Footwear and Associated Industries Award 2010 (AM2020/81)
• Timber Industry Award 2010 (AM2020/81)
• Vehicle Repair, Retail and Services Award 2020 (AM2020/83)
• Waste Management Award 2020 (AM2020/80)
• Water Industry Award 2020 (AM2020/77, AM2020/64 and AM2020/57)
• Wine Industry Award 2010 (AM2020/78) and
• Wool Storage, Sampling and Testing Award 2010 (AM2020/80).
[4] In a Decision 3 issued on 1 July 2020 we expressed our provisional view that the operative date of Schedule X of each of these awards4 be extended to 30 September 2020. Submissions opposing the applications and our provisional views were to be filed by 2pm today.
[5] In our decision of 1 July 2020, we made it clear that in the event that no submissions were filed opposing an application and our provisional view in respect of it then we would grant the application and vary the award. No such submissions were filed. Accordingly, we will grant the applications and vary the awards set out [3] above to extend the operation of Schedule X to 30 September 2020.
[6] In respect of each of the variations made the matters canvassed as providing a basis for the initial insertion of Schedule X into these awards remain apposite. In particular, the COVID-19 pandemic is still in progress and there remains 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, thereby limiting the spread of COVID-19 in workplaces and allowing businesses to continue to operate. 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.
[7] In our Decision on 1 July 2020 we also expressed our provisional view that Schedule X be inserted in the Electrical Power Industry Award 2020 and that it should operate until 30 September 2020. The application has been opposed and will be the subject of a hearing, by telephone, at 10am on Friday 3 July 2020.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR720702>
4 Ibid at [9]