DECISION

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

Application by Association of Consulting Surveyors National
(AM2020/90)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT

MELBOURNE, 27 AUGUST 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 – Surveying Award 2020.

[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 26 August 2020, the Association of Consulting Surveyors National (the Association) made an application to extend the operation of Schedule X in the Surveying Award 2020 (the Surveying Award). Schedule X was inserted into the Surveying Award 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] There is a question about whether the Association is able to make an application to vary the Surveying Award as it is not a registered organisation. We are also unsure whether the Association is an employer that is covered by a modern award. In order to deal with this potential technical impediment, we have decided to deal with this application on our own initiative in accordance with s.157(3)(a) of the Fair Work Act 2009 (Cth) (the Act).

[6] The Association submits the following in relation to Schedule X of the Surveying Award ceasing operation:

‘Whilst in most cases this has not been an issue, for our Victorian members this has been significant and as the Stage 4 restrictions continue. Our members are now finding they must stand down or ask staff to take leave as the work available is decreasing. This is a direct result of the pandemic and our members would like to be able to offer Pandemic Leave to their employees as the Stage 4 restrictions continue throughout September.

In most other states the work is continuing reasonably well in the circumstances and most member firms have been able to make arrangements with staff unless there are further issues with COVID of course.

However, firms in Victoria are struggling to find enough work for their staff as the nature of surveying requires them to be onsite, out on the streets, which is not possible, or highly limited during Stage 4.’

[7] The Association seeks to extend the operation of Schedule X in the Surveying Award until 31 October 2020. They submit that the operation of the extension should be backdated to 1 July 2020. As set out above, Schedule X ceased operation on 30 June 2020. The Association seeks the variation of the Surveying Award pursuant to s.157 of the Act. 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.

[8] Accordingly, it is our provisional view that we are not able to make the variation in the terms sought as there is no power to backdate the specified day of operation to 1 July 2020.

[9] However, it is our provisional view Schedule X in the Surveying Award should be reinstated with an operative date from the date of our final decision until 31 October 2020.

[10] Submissions opposing our provisional views must be filed by 12 noon on Friday 28 August 2020. Submissions should be sent to amod@fwc.gov.au in word version and include the relevant matter number in the subject line.

[11] If no submissions are filed opposing our provisional views, we will vary the award accordingly.

[12] If any submissions are filed opposing our provisional views then a hearing will take place at 2pm on Friday 28 August 2020, by telephone. Parties wishing to appear at the hearing are to provide the name, direct number and organisation by 12 noon on Friday 28 August 2020 to chambers.ross.j@fwc.gov.au.

[13] In the event that no submissions are filed opposing our provisional views then the hearing proposed for 2pm on Friday 28 August 2020 will not be necessary and will be vacated.

PRESIDENT

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