| [2021] FWCFB 4183 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.158—Application to vary or revoke a modern award
Graphic Arts, Printing and Publishing Award 2020
(AM2021/68)
VICE PRESIDENT HATCHER |
SYDNEY, 16 JULY 2021 |
Application to vary a modern award - Graphic Arts, Printing and Publishing Award 2020 – seeking to reinsert the terms of Schedule X—Additional measures during the COVID-19 pandemic to operate until 31 December 2021 – incompetent application pursuant to s 158(1) of the Fair Work Act 2009 (Cth) – whether Commission should act on its own initiative
[1] On 15 June 2021, the Real Media Collective (RMC) made an application to vary the Graphic Arts, Printing and Publishing Award 2020 (the Graphic Arts Award) to reinstate the terms of the expired Schedule X—Additional measures during the COVID-19 pandemic in the Graphic Arts Award until 31 December 2021. 1
[2] Schedule X, which provides an entitlement to unpaid ‘pandemic leave’ and the flexibility to take twice as much annual leave at half pay, was inserted into 99 modern awards on 8 April 2020 with a limited operation until 30 June 2020, unless extended. 2 Following an application by the Australian Manufacturing Workers’ Union to extend the operation of Schedule X in the Graphic Arts Award, a decision3 was issued which reinstated Schedule X with an operative date from 27 July 2020 until 30 September 2020 as the clause had expired on 30 June 2020. The award was then varied to reinstate Schedule X with an operative date from 27 July until 30 September 2020.4
[3] On 16 September 2020, the Full Bench in AM2020/93 issued a Statement 5 seeking applications from interested parties to further extend the operation of Schedule X. On 24 September 2020, the Full Bench issued a decision6 confirming its provisional view that the operation of Schedule X in a number of modern awards, including the Graphic Arts Award, should be extended until 29 March 2021.
[4] Leading up to the final expiry date of Schedule X, no party made an application to extend the operative date of the Schedule X in the Graphic Arts Award, which then expired as at 29 March 2021. 7
[5] In support of its application, the RMC submits that the reinstatement of the terms of Schedule X until 31 December 2021 is necessary given the ongoing circumstances created by COVID-19, and its effects on employers and employees. It further submits that:
• recent developments of new community cases of COVID-19 in various states, along with the emergence of new variations of the virus, evidences both the ongoing and potential detrimental effects of COVID-19 on Australian employers and employees;
• despite a national COVID-19 vaccination program being underway, which appears critical in reducing further outbreaks of the virus, there is a strong basis to believe at this time that the national vaccination program will not reach crucially relevant levels until at least the last quarter of 2021; and
• the recent lockdown conditions experienced in Victoria, and the ongoing potential for further lockdown situations to occur across the country, evidences the need within the industry to have access to mutually beneficial workplace flexibilities and options so as to preserve employment relationships.
[6] The RMC makes its application on the basis that the proposed variation to the Graphic Arts Award operate from the date of any decision issued by the Commission, rather than operating retrospectively from 29 March 2021.
[7] Pursuant to Item 1 in s 158(1) of the Fair Work Act 2009 (Cth) (FW Act), an application to vary, omit or include terms (other than outworker terms or coverage terms) in a modern award may only be made by an employer, employee or organisation that is covered by the modern award or an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award. The RMC has conceded, in email correspondence dated 1 July 2021, that it is not an employee, employer or an organisation of the type referred to in s 158 of the FW Act. Accordingly, RMC is not competent to bring its application, and consequently the application must formally be dismissed.
[8] However, the RMC in the same correspondence invited the Commission to deal with the same subject matter on its own initiative pursuant to s 157(3) of the FW Act. Section 157(3) provides that the Commission may exercise a discretionary power to make a determination varying a modern award on its own initiative.
[9] The Full Bench has formed the provisional view, based on the current circumstances pertaining to the COVID-19 pandemic, that it should act on its own initiative, pursuant to s 157(3) of the FW Act, to vary the Graphic Arts Award in the terms proposed by the RMC.
[10] Interested parties have until 5.00pm on Thursday 22 July 2021 to file submissions in response to this provisional view.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR731747>
1 RMC submission, 15 June 2021; RCI Draft determination, 15 June 2021