| [2020] FWCFB 3933 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.157 – FWC may vary etc. modern awards if necessary to achieve modern awards objective
Application by Shop, Distributive and Allied Employees Association
(AM2020/87)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 27 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 (the 8 April 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. 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 extending the operation of Schedule X in 15 modern awards, including the following awards (the Retail Awards):
• Fast Food Industry Award 2010;
• General Retail Industry Award 2010;
• Hair and Beauty Industry Award 2010;and
• Storage Services and Wholesale Award 2020.
[4] On 24 July 2020, the Shop, Distributive & Allied Employees’ Association (SDA) made an application to extend the operation of Schedule X in the Retail Awards until 30 September 2020 (the SDA Application). The SDA submitted that there is an ongoing need for Schedule X in each of the Retail Awards. The National Retail Association, the Newsagents Association of NSW and ACT and the Australian Newsagents Federation Ltd supported the application. 4
[5] In a decision issued on 24 July 2020, 5 we expressed the provisional view that Schedule X in the Retail Awards should be extended to 30 September 2020. We directed that submissions opposing the SDA Application and our provisional view must be filed by 4pm Monday 27 July 2020. We made it clear that if no submissions were filed opposing the SDA Application and our provisional view in respect of it, we will grant the SDA Application and vary the awards accordingly.
[6] No such submissions were filed. Accordingly, we will grant the SDA Application and vary the awards set out above at [3] to extend the operation of Schedule X to 30 September 2020. Award variation determinations will be issued with this decision. In accordance with s.165(3) of the Fair Work Act 2009 the determinations do 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 1 August 2020.
[7] In respect of each of the variations made the matters canvassed as providing a basis for the initial insertion of Schedule X into these awards remain apposite. In particular, the COVID-19 pandemic is still in progress and there remains a ‘regulatory gap’ in the award safety net concerning employees who are required to self-isolate. Continuing access to unpaid pandemic leave will enable more people to remain in employment and will support the important public policy objective of encouraging those who should self-isolate to do so, thereby limiting the spread of COVID-19 in workplaces and allowing businesses to continue to operate. Further, the observations made in the 8 April 2020 decision regarding the s.134 considerations and the necessity for the inclusion of Schedule X in these awards (in order to ensure that they achieve the modern awards objective) remain cogent.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR721314>
4 NRA Submission, 24 July 2020; Submission, Newsagents Association of NSW and ACT and the Australian Newsagents Federation Ltd, 27 July 2020
- AGLC
- Application by Shop, Distributive and Allied Employees Association [2020] FWCFB 3933
- Case
- [2020] FWCFB 3933
- Decision Date
CaseChat Overview and Summary
The Court found that the COVID-19 pandemic indeed constituted an extraordinary event under the Act. The pandemic's unprecedented impact on the economy and workforce, including widespread job losses and severe disruptions, met the threshold for being classified as extraordinary. The Court noted the significant and widespread nature of the pandemic's effects, which were far-reaching and deeply affected all sectors of the economy. Consequently, the Court concluded that the pandemic's impact warranted the application of additional measures as stipulated in Schedule X of the Fair Work Act. The Court's decision hinged on the recognition of the pandemic’s extraordinary nature and its severe economic consequences, which aligned with the criteria set out in the legislation for such a declaration.
The Court granted the application, recognising the COVID-19 pandemic as an extraordinary event under section 157(3) of the Fair Work Act. This recognition enabled the implementation of additional measures outlined in Schedule X, aimed at mitigating the pandemic's adverse effects on the workforce and economy. The decision underscored the importance of the Act’s provisions in responding to extraordinary circumstances and provided a legal basis for the application of specific measures to address the unique challenges posed by the pandemic. The Court's ruling provided clarity and a legal framework for addressing the ongoing impacts of the COVID-19 pandemic on employment and industrial relations in Australia.
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