| [2020] FWCFB 5144 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.157—FWC may vary etc. modern awards if necessary to achieve modern awards objective
Application to vary the Clerks – Private Sector Award 2020
(AM2020/95)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 24 SEPTEMBER 2020 |
Joint Application to vary modern award to achieve the modern awards objective – application to extend the operation of Schedule I – Award flexibility during the COVID-19 pandemic
[1] On 28 March 2020 we issued a Decision 1 granting a joint application filed by Ai Group and ACCI, to insert a new schedule, ‘Schedule I-Award flexibility during the COVID-19 pandemic’, into the Clerks – Private Sector Award 2020 (the Clerks Award). The new schedule came into operation on 28 March 2020 and was to cease to operate on 30 June 2020, unless extended. That initial joint application was supported by the Australian Council of Trade Unions (ACTU) and the Australian Services Union (ASU).
[2] A subsequent application was filed by Ai Group and ACCI in June 2020 to vary the terms of Schedule I and its period of operation (the First Extension Application). A revised draft determination was filed by the Applicants in the morning of 30 June 2020. The ASU opposed the Application.
[3] The First Extension Application was the subject of a hearing on 30 June 2020. At the conclusion of the hearing we said that we had decided to grant the application and vary the award in the terms proposed in the revised draft determination. We published reasons for our decision on 9 July 2020. 2
[4] At 12:55pm today, Ai Group and ACCI filed a joint application to extend the operation of Schedule I (the Second Extension Application.)
[5] If granted, the proposed variation would result in the extension of the period of operation of Schedule I, to 29 March 2021. This would provide, subject to various safeguards, for the continuation of flexibilities relating to:
• the implementation of working from home arrangements; 3
• reductions in ordinary hours of work; 4 and
• annual leave. 5
[6] Ai Group and ACCI submit that the variation is necessary (within the meaning of s.138) for what are described as seven overarching considerations:
(i) Australia remains at risk from the health crisis resulting from the Pandemic, and the circumstances of Victoria demonstrates the capacity for a resurgence in transmission rates even where progress is made in slowing or reducing such rates.
(ii) The threat to health posed by the Pandemic, developments in the international trading environment and Government initiatives to stop the spread of the virus have resulted in an exceptional decline in current economic conditions and cast a long shadow over conditions in the foreseeable future.
(iii) The Australian Government has extended the JobKeeper Scheme, subject to certain amendments, until 29 March 2021. Similarly, the Full Bench expressed a provisional view that Schedule X-additional measures during the COVID-19 pandemic, which is currently contained some 80 awards, should be extended until the same date. 6 This represents an acknowledgement or reinforcement of the matters identified at (i) and (ii) above but separately demonstrates that the proposed variation provides for the adoption of a comparable approach to other regulatory changes in relation to Schedule I.
(iv) The Schedule remains important to employers despite the operation of JobKeeper arrangements. A large group of employers and employees do not fall within the scope of the JobKeeper scheme and are experiencing economic distress and circumstances which mean that the flexibilities are necessary to protect employment opportunities.
(v) Key findings and reasoning underpinning the Commission’s decision in March 2020 pertaining to the introduction of Schedule I and in its subsequent July 2020 decision 7 providing for the extension of the Schedule are apposite, as the applicable circumstances and relevant considerations have not materially changed so as to justify a different conclusion as to the necessity for the Schedule.
(vi) The terms of the Schedule expressly contemplate that the period of operation may be extended by the Commission:
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.
(vii) The present relevant circumstances justifying the operation of the Schedule appear likely to persist until at least 29 March 2021 and it is both important and fair to provide both employers and employees certainty as to the availability of the current flexibilities until this date. The requirement under s.134(1)(g) that the Commission take into account the need for a stable modern awards system provide a powerful justification for extending the Schedule until this date, rather than for a shorter period on the basis that it can be further extended on application.
[7] Ai Group and ACCI have endeavoured to have discussions and reach agreement with the ACTU and the ASU on the extension of the Schedule, but report that the union parties have advised that they are not prepared to extend the operation of any of the provisions in the Schedule.
[8] We issue the following directions:
1. Ai Group and ACCI are to file any further material in support of their application by no later than 4 pm on Friday, 25 September 2020.
2. Any party opposing the Second Extension Application is to file a written submission in support of its position by no later than 12 noon on Tuesday, 29 September 2020.
3. All submissions are to be sent to amod@fwc.gov.au in word format. All submissions will be published on the AM2020/95 page of the Commission’s website.
4. The Second Extension Application is listed for hearing at 10 am on Wednesday, 30 September 2020, by telephone. Parties wishing to appear at the hearing are to provide the name, direct number and organisation by 4 pm on Tuesday, 29 September 2020 to chambers.ross.j@fwc.gov.au.
[9] The Commission has published an information note on the Government responses to the COVID-19 pandemic on its website, which was last updated on 18 September 2020. The information note outlines the measures taken by both federal and state governments to put restrictions on social gatherings and non-essential businesses, as well as the assistance provided to support businesses and households.
[10] On 26 June 2020 the Commission published an Information Note, prepared by Commission staff, on the Clerks Award and COVID-19. An updated Information Note will be published tomorrow morning.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
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3 Clause I.2.1
4 Clause I.2.2
5 Clause I.2.3