Fair Work Act 2009 (Cth)
s.157–FWC may vary etc. modern awards if necessary to achieve modern awards objective

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 – Surveying Award 2020.

[1] On 26 August 2020, the Association of Consulting Surveyors National (the Association) made an application to extend the operation of Schedule X in the Surveying Award 2020 (the Surveying Award).

[2] Schedule X was inserted into the Surveying Award following a decision 1 of the Full Bench issued on 8 April 2020 and operated until 30 June 2020. No application to extend the operation of the Schedule was received in accordance with the 23 June 2020 Statement2 and so the operation of the Schedule ceased on 30 June 2020.

[3] The Association seeks to extend the operation of Schedule X in the Surveying Award until 31 October 2020. They submit that the operation of the extension should be backdated to 1 July 2020. As set out above, Schedule X ceased operation on 30 June 2020. The Association seeks the variation of the Surveying Award pursuant to s.157 of the Act. Section 165 of the Act sets out that variation determinations come into operation on the day specified in the determination and s.165(2) says:

(2) The specified day must not be earlier than the day on which the determination is made, unless:

(a) the determination is made under section 160 (which deals with variation to remove ambiguities or correct errors); and

(b) the FWC is satisfied that there are exceptional circumstances that justify specifying an earlier day.

[4] In a decision  3 issued on 27 August 2020 we expressed the provisional view that we are not able to make the variation in the terms sought as there is no power to backdate the specified day of operation to 1 July 2020. We also expressed our provisional view that Schedule X in the Surveying Award should be reinstated with an operative date from the date of our final decision until 31 October 2020 and directed that submissions opposing our provisional views must be filed by 12 noon on Friday 28 August 2020.

[5] In our decision of 27 August 2020, we made it clear that if no submissions were filed opposing our provisional views, then we would vary the Surveying Award accordingly. No such submissions were filed.

[6] We are satisfied that the variation proposed is necessary to achieve the modern awards objective and in so deciding we have taken into account the considerations in s.134(1)(a) to (h), insofar as they are relevant. Once varied, the Surveying Award will only include terms to the extent necessary to achieve the modern awards objective.

[7] Accordingly, we will grant the application and vary the Surveying Award. The Award variation determination will be issued with this decision. The hearing proposed for 2pm on Friday 28 August 2020 is vacated.

[8] A copy of the variation determination is set out at Attachment A.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR722233>

Attachment A

Fair Work Act 2009
s.157 – FWC may vary etc. modern awards if necessary to achieve modern awards objective

Association of Consulting Surveyors National
(AM2020/90)

SURVEYING AWARD 2020
MA000066

Schedule X-Additional measures during the COVID-19 pandemic – Surveying Award 2020.

A. Further to decision [[2020] FWCFB 4566] issued by the Full Bench on 28 August 2020, the above award is varied as follows:

1. By deleting the words “8 April 2020” and “30 June 2020” in clause X.1 and inserting “28 August 2020” and “31 October 2020” respectively.

2. By deleting the words “30 June 2020” in clause X.2.1(d) and inserting “31 October 2020”.

3. By deleting the words “30 June 2020” in clause X.2.2(c) and inserting “31 October 2020”.

B. This determination comes into operation on 28 August 2020. In accordance with s.165(3) of the Fair Work Act 2009 this 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 28 August 2020.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

 1   [2020] FWCFB 1837

 2   [2020] FWCFB 3281

 3   [2020] FWCFB 4537