DECISION

Fair Work Act 2009
s.158—Application to vary or revoke a modern award

COVID-19 Award Flexibility – Schedule X
(AM2021/86)

Award flexibility schedules – Schedule X—Additional measures during the COVID-19 pandemic – award specific COVID-19 schedules – schedules due to cease operation – application to extend operation to 30 June 2022 –applications granted.

Background

[1] On 8 April 2020 a Full Bench issued a decision 1 (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 (excluding the health sector awards) was subsequently extended to 30 September 2020 2 and later extended again until 29 March 20213 and 31 December 2021.4 The operation of Schedule X in the health sector awards was subsequently extended to 31 July 20205 and later again to 29 October 20206, 29 March 20217 and 31 December 20218.

[3] On 10 December 2021, the Commission, through its subscription service, notified the parties as follows: “Schedule X is currently due to cease operation after 31 December 2021 in the 73 awards listed below. As set out in clause X.1 of Schedule X, the period of operation can be extended on application.”

[4] The Commission has now received applications from various unions seeking the extension of the operation of that part of Schedule X providing for unpaid pandemic leave in 72 of the 73 awards in which Schedule X was due to expire on 31 December 2021. The period of the extension sought is until 30 June 2022. In addition, the Commission received an application from the Construction, Forestry, Maritime, Mining and Energy Union to reinstate the unpaid pandemic leave provisions of Schedule X in the Mobile Crane Hiring Award 2020, which had expired on 29 March 2021. The hearing and determination of the applications 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).

[5] On 14 December 2021, I issued a Statement 9 which identified (in Attachment A) the 68 awards the subject of applications made to that point. On 15 December 2021, I issued a further Statement10 relating to five further awards for which I had received further applications.

[6] The Statements directed any interested party which opposed the granting of any of the applications to file submissions by 12pm (AEDT) on Friday, 17 December 2021 identifying the awards in respect of which the applications were opposed and outlining the reasons for the party’s opposition. I reserved Monday 20 December 2021 for a hearing should any submissions in opposition be received.

[7] The only submissions filed in accordance with the direction were from the Australian Industry Group (Ai Group), the Australian Chamber of Commerce and Industry (ACCI) and the Restaurant and Catering Industry Association (RCIA). The Ai Group and the ACCI did not oppose the applications, but sought that the Commission of its own initiative also extend the provisions of Schedule X which facilitated the taking of twice the amount of annual leave at half pay (annual leave provisions). The RCIA supported the submissions of the ACCI. Following the receipt of these submissions, the reserved hearing date was vacated.

[8] I consider that the applications to extend the unpaid pandemic leave provisions of Schedule X in the 73 awards, which are unopposed, should be granted. The original rationale for the establishment of these provisions in the April 2020 Decision was that it was necessary to address a ‘regulatory gap’ whereby employees who are required to self-isolate because they have been exposed to someone infected with COVID-19 but have not yet tested positive to COVID-19, have not displayed any symptoms and are not unfit for work because of personal illness, and are consequently prevented from working, may not be able to access paid personal leave. 11 That rationale retains its relevance in the current circumstances. As States and Territories, to different degrees and according to different timetables, remove various COVID-19-related restrictions on activities and ‘open up’, it is likely that the number of COVID-19 infections will increase significantly. This is already occurring in New South Wales. In that context, the demand for COVID-19 testing will undoubtedly increase, and community adherence to required or recommended self-isolation measures will be of the utmost importance.

[9] I am satisfied, for the purpose of s 157(1) of the FW Act, that the variations to extend the operation of the unpaid pandemic leave provisions of Schedule X in the 73 awards are necessary to achieve the modern awards objective. In respect of the matters required to be taken into account under s 134(1) of the FW Act, I consider the findings made by the Full Bench in the April 2020 Decision in relation to unpaid pandemic leave 12 remain fully applicable in the current circumstances and I adopt those findings as my own, without repeating them, for the purpose of this decision.

[10] Variation determinations for the 73 awards will be issued in conjunction with this decision.

[11] Even if it were within the scope of my remit under ss 616(3D)(b) and 582 to do so, I would not engage the Commission’s power under s 157(3)(a) to act on its own initiative to vary the 73 awards to also extend the annual leave provisions, as proposed by the Ai Group and the ACCI. There are two principal reasons for this. First, the fact that the union applicants in respect of these awards have chosen not to seek the extension of the annual leave provisions indicates that there is no consensus that their continuation is necessary to meet the modern awards objective.

[12] Second, the circumstances relevant to the annual leave provisions have changed significantly since the April 2020 Decision. In that decision, the stated rationale for these provisions was primarily that they served as an employment preservation measure, in the context where the Australian economy was contracting in the face of the first wave of COVID-19 infection and the public health measures taken to combat it. The current economic position is very different. The Reserve Bank, in its monetary policy decision statement of 7 December 2021, said:

“The Australian economy is recovering from the setback caused by the Delta outbreak. High rates of vaccination and substantial policy support are underpinning this recovery. Household consumption is rebounding strongly and the outlook for business investment has improved. The emergence of the Omicron strain is a new source of uncertainty, but it is not expected to derail the recovery. The economy is expected to return to its pre-Delta path in the first half of 2022.

Leading indicators point to a strong recovery in the labour market. Job advertisements are at an historically high level and there are reports of firms finding it difficult to hire workers.” 13

[13] In circumstances where the current matter is being determined “on the papers” and in circumstances of some urgency given the time of year, I do not consider that it is appropriate to extend the annual leave provisions acting on the Commission’s own initiative given the lack of any consensus to do so and the fact that changed economic circumstances may arguably have rendered inapplicable the original rationale for the provisions.

[14] This conclusion is not intended to preclude any party with the capacity to do so under s 159 of the FW Act from applying for the extension of the annual leave provisions in some or all of the 73 awards. Any such application, if made, will be considered on its merits.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Attachment A

 1   [2020] FWCFB 1837

 2   [2020] FWCFB 3490

 3   [2020] FWCFB 5137

 4   [2021] FWCFB 1621

 5   Transcript, 30 June 2020; PR720633

 6   [2020] FWCFB 3986

 7   [2020] FWCFB 5768

 8   [2021] FWCFB 1622

 9   [2021] FWC 6606

 10   [2021] FWC 6611

 11   [2020] FWCFB 1837 at [67]-[70]

 12   Ibid at [118]-[132]

 13   https://www.rba.gov.au/media-releases/2021/mr-21-29.html