| [2020] FWC 3384 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.157 - FWC may vary etc. modern awards if necessary to achieve modern awards objective
COVID-19 pandemic - Schedules
(AM2020/34 and others)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 28 JUNE 2020 |
Various applications relating to COVID-19 Schedules
[1] In recent days the Commission has received a number of applications in respect of COVID-19 Schedules in various modern awards. The applications fall into three broad categories, as set out below.
[2] Three applications have been made with the consent of the relevant union(s) or are unopposed.
[3] The applications in respect of the Hospitality Industry (General) Award 2020 (Matter No. AM2020/35) and the Restaurant Industry Award 2020 (Matter No. AM2020/36) seek to insert two new schedules, in substantially the same terms, to replace the existing Schedules J and I respectively. The main differences between the existing and proposed schedules appear to be as follows:
• The new schedules exclude employees employed by an employer that qualifies for the JobKeeper scheme.
• The new schedules require the employer to advise the employee in writing that the employer consents to arbitration.
• The new schedules provide that a direction in relation to hours of work can only be given in certain circumstances (because the employee can’t be usefully employed due to COVID, the direction is reasonable and given in writing).
• The new schedules include some additional safeguards around annual leave.
• The new schedules do not include the close down provisions.
[4] The new schedules will operate from 1 July 2020 until 27 September 2020. 1
[5] The relevant union in each case, the UWU, supports the applications.
[6] The third of these applications seeks to vary Schedule J in the Vehicle Repair, Services and Retail Award 2020, by extending the operation of some of the clauses in the schedule, until 31 July 2020.
[7] The Full Bench constituted to hear and determine each of these applications has issued statements 2 expressing the provisional view that the awards be varied in the terms sought.
[8] Any submissions opposing these applications and the Full Bench’s provisional view are to be filed by 4pm on Monday 29 June 2020 (submissions are to be sent to chambers.ross.J@fwc.gov.au in Word format and are to include the matter number in the subject line).
[9] If any submissions are filed opposing the Application and our provisional views, then a hearing will take place at 11am on Tuesday, 30 June 2020 by telephone.
[10] Any party who wishes to attend the hearing in relation to this matter should send an email to Chambers.Ross.j@fwc.gov.au specifying a name and contact telephone number by 4pm on Monday, 29 June 2020.
[11] The Full Bench has indicated that if no submissions are filed opposing the applications and the Full Bench’s provisional views then:
• the applications will be granted and the awards varied accordingly: and
• the hearing proposed for 11 am on Tuesday 30 June 2020 will not be necessary and will be vacated.
[12] On 8 April 2020 a Full Bench issued a 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.
[13] A Statement issued on 23 June 2020 3, indicated that the Commission did not propose to vary Schedule X to extend its operation past 30 June 2020, on its own motion. Parties wishing to extend the operation of the schedule were invited to make an application by Friday 26 June 2020.
[14] Applications have been filed to extend the operation of Schedule X, from 30 June to 31 July 2020, in the following awards:
• Fast Food Industry Award 2010 (AM2020/43)
• General Retail Industry Award 2010 (AM2020/44)
• Hair and Beauty Industry Award 2010 (AM2020/41)
• Storage Services and Wholesale Award 2020 (AM2020/42)
[15] The following applications seek to extend the operation of Schedule X until further order of the Commission or other order in AM2020/13:
• Aboriginal Community Controlled Health Services Award 2020 (AM2020/34)
• Aged Care Award 2010 (AM2020/38)
• Ambulance & Patient Transport industry Award 2020 – AM2020/45 – United Workers’ Union and AM2020/47 – J Gomperts
• Health Professionals and Support Services Award 2010 (AM2020/40)
• Medical Practitioners Award 2020 (AM2020/49)
• Nurses Award 2010 (AM2020/46)
• Pharmacy Industry Award 2010 (AM2020/50)
• Social, Community, Home Care and Disability Services Industry Award 2010 (AM2020/52)
• Supported Employment Services Award 2010 (AM2020/39)
[16] Two applications seek a longer period of extension:
• Live Performance Award 2010 (AM2020/48)- this application seeks to extend the operation of Schedule X until 30 June 2022.
• Air Pilots Award 2020 (AM2020/51) - this application seeks to extend the operation of Schedule X until 31 December 2020.
[17] It is unclear whether any of these applications are opposed. A statement 4 issued on 26 June 2020 stated that these applications have been listed for hearing at 12 noon on Tuesday 30 June 2020. A Notice of Listing was published on the same day.
[18] In an application filed on 26 June 2020 (AM2020/32), the ACTU sought the following directions:
1. That the applicant serve the attached application by e-mail on the persons and organisations identified as an “other party” in this application.
2. That, upon completion of the above steps, this application be deemed served.
3. That the FWC list a directions hearing in relation to this matter, for Monday 29 June 2020.
4. That the FWC extend the date by which parties should make an application to extend “Schedule X” (as referred to in paragraph 4 of its statement of 23 June 2020 ([2020] FWCFB 3281).
5. That the FWC issue such further directions as are required following the directions hearing on Monday 29 June.
[19] The ACTU’s application is listed for Mention by telephone on Monday 29 June 2020 at 10am.
[20] On 28 March 2020 a Full Bench granted an application to vary the Clerks Award and inserted a COVID-19 Schedule, Schedule I. The application was supported by the relevant union, the ASU, and the ACTU.
[21] Clause I.1.1 of Schedule I currently provides that the schedule operates until 30 June 2020 and that the period of operation can be extended on application.
[22] On 19 June 2020, an application to vary Schedule 1 of the Clerks – Private Sector Award 2020 (the Clerks Award) was filed jointly by Australian Industry Group (Ai Group) and the Australian Chamber of Industry and Commerce (ACCI). A revised draft determination was filed on 25 June 2020 (the Application). The Application seeks to extend the operation of the schedule until 30 September 2020and proposes a number of other variations to the substantive terms of the schedule.
[23] The Application was not supported by the ASU. Conferences were held on 23 and 24 June 2020, before Commissioner Bisset in an effort to resolve some union concerns in relation to the Application. No resolution was reached.
[24] A Statement 5 published on 26 June 2020 stated that the application has been listed for 12noon on Tuesday 30 June 2020. Parties wishing to attend the hearing are to provide the name, direct number and organisation by 4pm Monday, 29 June 2020 to chambers.ross.j@fwc.gov.au.
[25] To facilitate the hearing and determination of the matters referred to in this Statement, Commission staff have prepared the following information notes:
• COVID-19 situation update June 2020
• ABS Business indicators, Business Impacts of COVID-19 June 2020
• Impact of COVID-19 on employees and employers likely to be covered by the Vehicle Award and a snapshot of recent effects of the pandemic on vehicle sales
• Clerks Award and COVID-19
• Impact of COVID-19 on employees and employers in the Accommodation and food services sector
• Retail Trade and COVID-19
[26] In the 26 June statement 6 the Full Bench constituted to hear and determine the Schedule X and Clerks – Private Sector Award applications expressed the preliminary view that there was a degree of overlap between these applications and directed the relevant peak councils to confer:
‘It is our preliminary view that there is a degree of overlap between the various applications we have listed for hearing. Each application arises out of the COFID-19 pandemic and each application seeks to extend the date of operation of existing award schedules. At this stage there is no indication as to whether any of the Schedule X applications will be opposed.
To facilitate the efficient determination of these matters we direct the relevant peak bodies (the ACTU, ACCI and Ai Group) to confer with a view to arriving at a consent position in respect of all of the matters before us. The Commission is available to facilitate such discussions, upon request.’ 7
[27] Any request for Commission assistance to facilitate the discussions referred to above is to be directed to chambers.ross.j@fwc.gov.au.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR720553>
1 Hospitality Award – Schedule J to operate from 1 July to 27 September [2020] FWCFB 3375. Restaurant Award– Schedule I to operate from 1 July to 27 September [2020] FWCFB 3376 – The error in Statements issued on 26 June will be corrected on Monday 29 June.
2 [2020] FWCFB 1760 on 1 April 2020 and [2020] FWCFB 3281 on 23 June 2020
6 ibid
7 Ibid at [16] – [17]