DECISION

Fair Work Act 2009
s.157 – FWC may vary etc. modern awards if necessary to achieve modern awards objective

Application by the Australian Manufacturing Workers' Union
(AM2020/86)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT

MELBOURNE, 24 JULY 2020

Section 157(3) of the Fair Work Act 2009 (Cth) – additional measures during COVID-19 pandemic – Schedule X-Additional measures during the COVID-19 pandemic.

[1] On 8 April 2020 a Full Bench issued a decision, 1 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, unless extended.

[2] A Statement 2 issued on 23 June 2020 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.

[3] On 1 July 2020 a decision 3 was issued granting an extension to Schedule X in 15 modern awards. A decision on 2 July 20204 granted an extension to Schedule X in a further 63 awards.

[4] On 23 July 2020, the Australian Manufacturing Workers’ Union (AMWU) made an application to extend the operation of Schedule X in the Manufacturing and Associated Industries and Occupations Award 2020 (the Manufacturing Award) and the Graphic Arts and Printing and Publishing Award 2010 (the Graphic Arts Award). The determination sought by the AMWU is at Attachment A. Schedule X was inserted into both awards following the 8 April 2020 decision and operated until 30 June 2020. No application to extend the operation of the Schedule was received in accordance with the 23 June 2020 statement and so the operation of the Schedule ceased on 30 June 2020.

[5] The AMWU submit that there have been significant changes since 30 June 2020 including the re-emergence of a new wave of infections and enforcement of additional safety and distancing measures to contain the spread of COVID-19 in Victoria and that NSW is currently at a heightened risk of a second wave of infections. They submit further that

‘Workplace transmission has become a driving factor in the rise in the transmissions.

It is likely that the pandemic will last for the remainder of 2020 and at least into 2021 and will continue to affect workers for the duration.

Providing the ability for an employer and employee to access twice the amount of annual leave and half pay provides a useful mechanism for maintaining the employment relationship and assist in managing the impact of the pandemic.

The continued provision of access to unpaid pandemic leave will allow more people to remain in employment and will assist in the important public policy objective of encouraging those who may be required to self -isolate to do so.

No legislative changes alter the correctness of the legal reasoning in paragraphs [68]-[70] and [74] of the decision [2020] FWCFB 1837 as to the need to preserve the employment relationship where an employee is required to self-isolate.’

[6] The AMWU seek to amend Schedule X of the Manufacturing Award and the Graphic Arts Award so that the Schedules operate from 8 April 2020 until 30 September 2020. As set out above, Schedule X in both of these awards ceased operation on 30 June 2020. The AMWU’s application seeks to vary the awards pursuant to s.157 of the Fair Work Act 2009 (Cth). Section 165 of the Act sets out that variation determinations come into operation on the day specified in the determination and s.165(2) says:

(2) The specified day must not be earlier than the day on which the determination is made, unless:

(a) the determination is made under section 160 (which deals with variation to remove ambiguities or correct errors); and

(b) the FWC is satisfied that there are exceptional circumstances that justify specifying an earlier day.

[7] Accordingly, it is our provisional view that we are not able to grant the AMWU’s application in the terms sought as there is no power to backdate the specified day of operation to 30 June 2020.

[8] However, it is our provisional view Schedule X in the Manufacturing and Graphic Arts award should be reinstated with an operative date from the date of our final decision until 30 September 2020.

[9] Submissions opposing the application and our provisional views must be filed by 4pm Monday 27 July 2020. Submissions should be sent to amod@fwc.gov.au in word version and include the relevant matter number in the subject line.

[10] If no submissions are filed opposing the application and our provisional views in respect of it, we will grant the application and vary the awards accordingly.

[11] If any submissions are filed opposing the applications and our provisional views then a hearing will take place at 10am on Tuesday 28 July 2020, by telephone. Parties wishing to appear at the hearing are to provide the name, direct number and organisation by 4pm Monday 27 July 2020 to chambers.ross.j@fwc.gov.au.

[12] In the event that no submissions are filed opposing the application and our provisional views in respect of it then the hearing proposed for 10am on Tuesday 28 July 2020 will not be necessary and will be vacated.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

Attachment A

PRXXXX

FAIR WORK COMMISSION

DRAFT DETERMINATION

Fair Work Act 2009
s.157—FWC may vary etc. modern awards if necessary to achieve modern awards objective

Variation of Awards
(AM2020/XX)

FWC MEMBER

LOCATION, XX XXXX 2020

Schedule X—Additional measures during the COVID-19 pandemic.

Further to the decision [2020 FWCFB XXXX] issued by the Full Bench of the Fair Work Commission on XX XXX 2020, the awards listed in Schedule A of this draft determination are varied as follows:

1. By deleting clause X.1 in Schedule X and replacing it with the following:

X.1 Subject to clauses X.2.1(d) and X.2.2(c), Schedule X operates from 8 April 2020 until 30 September 30 2020. The period of operation can be extended on application.

2. By deleting sub clause (d) of clause X.2.1 in Schedule X and replacing it with the following:

(d) A period of leave under clause X.2.1(a) must start before 30 September 2020, but may end after that date.

3. By deleting sub clause (c) of clause X.2.2 and replacing it with the following:

B. This determination comes into operation on XX XXXX 2020. In accordance with s.165(3) of the Fair Work Act 2009 this determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after XX XXXX 2020.

FWC Member