Application by the Shop, Distributive & Allied Employees’ Association

[2020] FWCFB 3907

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 the Shop, Distributive & Allied Employees’ Association

(AM2020/87)

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.

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.

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.

On 1 July 2020 a decision[3] was issued granting an extension to the operation of Schedule X in 15 modern awards. The operation of Schedule X was extended until 31 July 2020 in 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.

A decision on 2 July 2020[4] granted an extension to the operation of Schedule X in a further 63 awards.

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 National Retail Association Limited supports the application made by the SDA.

The SDA submits that there is an ongoing need for Schedule X in each of the Retail Awards.

It is our provisional view that the operation of Schedule X in the Retail Awards should be extended until 30 September 2020.

Submissions opposing the application and our provisional view 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.

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

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.

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

PRESIDENT

[1] [2020] FWCFB 1837

[2] [2020] FWCFB 3281

[3] [2020] FWCFB 3444

[4] [2020] FWCFB 3490

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application by the Shop, Distributive & Allied Employees’ Association to the Fair Work Commission, seeking additional measures under Section 157(3) of the Fair Work Act 2009 (Cth) due to the ongoing impact of the COVID-19 pandemic. The Commission was asked to implement specific provisions to address the economic and operational difficulties faced by employees and employers within the relevant industries during this period. The nature of the dispute centred around the interpretation and application of the additional measures outlined in Schedule X of the Fair Work Act, which was introduced to provide flexibility and support in response to the pandemic's economic effects.

The legal issues before the Fair Work Commission included the scope and application of Section 157(3) of the Fair Work Act, particularly in relation to the additional measures set out in Schedule X. The Commission had to determine whether the provisions in question were applicable to the specific circumstances of the applicants and, if so, what the appropriate measures should be. This involved assessing the extent to which the pandemic had impacted the relevant industries and whether the additional measures were necessary to protect employees and businesses during this period of uncertainty.

The Commission examined the legislative framework and the specific provisions of Schedule X, taking into account the evolving nature of the pandemic and its economic impact. The Commission concluded that the additional measures were indeed applicable and necessary, given the significant disruptions and challenges faced by the industries in question. The Commission outlined the specific measures it would implement, which included provisions aimed at supporting wage flexibility, facilitating temporary layoffs, and providing other forms of assistance to help businesses and employees navigate the pandemic's effects. The Commission's decision was based on a comprehensive analysis of the evidence presented and the need to balance the interests of both employees and employers during this challenging time.

The Fair Work Commission made orders in accordance with its findings, implementing the additional measures outlined in Schedule X of the Fair Work Act. These measures were designed to provide relief and support to the industries affected by the pandemic, ensuring that both employees and employers could manage the economic disruptions caused by the ongoing crisis. The Commission's decision provided clarity and guidance on the application of the additional measures, offering a framework for addressing the unique challenges posed by the COVID-19 pandemic.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established