DECISION

Fair Work Act 2009
s.158—Applications to vary, revoke or make modern award

COVID-19 Award Flexibility Schedules
(AM2021/9 and ors)

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 decision 1 (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 2020 2 and later extended again until 29 March 2021.3

[3] On 3 March 2021 a Statement 4 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

•  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 decision 5 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)

[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

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Attachment A

 1   [2020] FWCFB 1837

 2   [2020] FWCFB 3490

 3   [2020] FWCFB 5137

 4   [2021] FWC 1148

 5   [2021] FWCFB 1601

 6   [2021] FWCFB 1601 at [16]