Fair Work Act 2009
s.158 - Application to vary or revoke a modern award

Plumbing and Fire Sprinklers Award 2020
(AM2021/75)

Application to vary a modern award – Plumbing and Fire Sprinklers Award 2020 – seeking to insert the terms of Schedule X – Additional measures during the COVID-19 pandemic to operate until 31 December 2021

[1] On 3 August 2021, the Master Plumbers’ and Mechanical Services Association of Australia (MPMSAA) made an application to vary the Plumbing and Fire Sprinklers Award 2020 (Plumbing Award) to insert the terms of Schedule X – Additional Measures during the COVID-19 pandemic (Schedule X) in the Plumbing Award to operate until 31 December 2021, or a later date as determined by the Commission. The application is supported and endorsed by Master Plumbers ACT, Master Plumbers NSW, the Master Plumbers & Gasfitters Association of Western Australia, the Master Plumbers Association of Queensland, Master Plumbers of South Australia and the Master Plumbers Association of Tasmania.

[2] The large majority of modern awards, including the Building and Construction General On-site Award 2010, the Joinery and Building Trades Award 2010 and the Mobile Crane Hiring Award 2010 contain the Schedule X provisions the subject of the MPMSAA’s application. In support of the present application, the MPMSAA contends that the circumstances which originally caused the Full Bench to insert Schedule X into various modern awards has re-emerged and should justify the insertion of Schedule X into the Plumbing Award. At the time of making this application, the situation concerning COVID-19 has deteriorated significantly in New South Wales, Victoria, Queensland and South Australia and restrictions are currently in place in several states. The MPMSAA also contends that there is currently a regulatory gap in the award safety net concerning employees who are required to isolate following potential exposure, and access to unpaid pandemic leave and annual leave at half pay will enable persons to remain in employment and will support the important public policy objective of isolation to prevent infections.

[3] The Full Bench has formed the provisional view, based on the current circumstances pertaining to the COVID-19 pandemic and the fact that Schedule X provisions are already contained in other awards applicable to the building and construction industry, that the MPMSAA’s application should be granted and that the Plumbing Award should be varied pursuant to s 158 of the Fair Work Act 2009 by inserting Schedule X into the Plumbing Award.

[4] If any interested party opposes this provisional view, it should file a submission indicating its opposition and outlining the reasons for its opposition by 5.00pm (AEST) on Tuesday 10 August 2021. In the absence of any opposition, we will give effect to our provisional view and the Plumbing Award shall be varied in the terms proposed in the draft determination attached to this statement.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

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DRAFT DETERMINATION

Fair Work Act 2009
s.158—Application to vary or revoke a modern award

Master Plumbers and Mechanical Services Association of Australia
(AM2021/75)

PLUMBING AND FIRE SPRINKLERS AWARD 2020
[MA000036]

Application to vary the Plumbing and Fire Sprinklers Award 2020 – Schedule X—Additional measures during the COVID-19 pandemic.

A. Further to the decision issued by the Full Bench of the Fair Work Commission on XX August 2021 [[2021] FWCFB XXXX] the above award is varied as follows:

1. By inserting Schedule X as follows:

Schedule X—Additional Measures During the Covid-19 Pandemic

X.1 Subject to clauses X.2.1(d) and X.2.2(c), Schedule X operates from XX August 2021 until 31 December 2021. The period of operation can be extended on application.

X.2 During the operation of Schedule X, the following provisions apply:

X.2.1 Unpaid pandemic leave

(a) Subject to clauses X.2.1(b), (c) and (d), any employee is entitled to take up to 2 weeks’ unpaid leave if the employee is required by government or medical authorities or on the advice of a medical practitioner to self-isolate and is consequently prevented from working, or is otherwise prevented from working by measures taken by government or medical authorities in response to the COVID-19 pandemic.

(b) The employee must give their employer notice of the taking of leave under clause X.2.1(a) and of the reason the employee requires the leave, as soon as practicable (which may be a time after the leave has started).

(c) An employee who has given their employer notice of taking leave under clause X.2.1(a) must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the leave is taken for a reason given in clause X.2.1(a).

(d) A period of leave under clause X.2.1(a) must start before 31 December 2021, but may end after that date.

(e) Leave taken under clause X.2.1(a) does not affect any other paid or unpaid leave entitlement of the employee and counts as service for the purposes of entitlements under this award and the NES.

NOTE: The employer and employee may agree that the employee may take more than 2 weeks’ unpaid pandemic leave.

X.2.2 Annual leave at half pay

(a) Instead of an employee taking paid annual leave on full pay, the employee and their employer may agree to the employee taking twice as much leave on half pay.

(b) Any agreement to take twice as much annual leave at half pay must be recorded in writing and retained as an employee record.

(c) A period of leave under clause X.2.2(a) must start before 31 December 2021, but may end after that date.

EXAMPLE: Instead of an employee taking one week’s annual leave on full pay, the employee and their employer may agree to the employee taking 2 weeks’ annual leave on half pay. In this example:

•  the employee’s pay for the 2 weeks’ leave is the same as the pay the employee would have been entitled to for one week’s leave on full pay (where one week’s full pay includes leave loading under the Annual Leave clause of this award); and

•  one week of leave is deducted from the employee’s annual leave accrual.

NOTE 1: A employee covered by this award who is entitled to the benefit of clause X.2.1 or X.2.2 has a workplace right under section 341(1)(a) of the Act.

NOTE 2: Under section 340(1) of the Act, an employer must not take adverse action against an employee because the employee has a workplace right, has or has not exercised a workplace right, or proposes or does not propose to exercise a workplace right, or to prevent the employee exercising a workplace right. Under section 342(1) of the Act, an employer takes adverse action against an employee if the employer dismisses the employee, injures the employee in his or her employment, alters the position of the employee to the employee’s prejudice, or discriminates between the employee and other employees of the employer.

NOTE 3: Under section 343(1) of the Act, a person must not organise or take, or threaten to organise or take, action against another person with intent to coerce the person to exercise or not exercise, or propose to exercise or not exercise, a workplace right, or to exercise or propose to exercise a workplace right in a particular way.

2. By updating the table of contents and cross-references accordingly.

B. This determination comes into operation on XX August 2021. 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 August 2021.

VICE PRESIDENT