1 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, 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 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 Statement2 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 decision3 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 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. [5] 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 1 [2020] FWCFB 1837 2 [2020] FWCFB 3281 3 [2020] FWCFB 3444 4 [2020] FWCFB 3490 [2020] FWCFB 3925 DECISION [2020] FWCFB 3925 2 received in accordance with the 23 June 2020 statement and so the operation of the Schedule ceased on 30 June 2020. [6] The AMWU’s application seeks to vary the awards pursuant to s.157 of the Fair Work Act 2009 (Cth) (FW 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. [7] In a decision issued on 24 July 2020,5 we expressed the 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. We also expressed the provisional view that Schedule X in the Manufacturing and Graphic Arts Awards should be reinstated with an operative date from the date of our final decision until 30 September 2020. [8] In our decision of 24 July 2020 we directed that submissions opposing the AMWU application and our provisional views were to be filed by 4pm Monday, 27 July 2020. We made it clear that if no submissions were filed opposing the AMWU application and our provisional views in respect of that application, then we would grant the application and vary the Manufacturing Award and the Graphic Arts Award accordingly. [9] No such submissions were filed.6 Accordingly, we will grant the application and vary the Awards. Award variation determinations will be issued with this decision. In accordance with s.165(3) of the FW Act 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 27 July 2020. 5 [2020] FWCFB 3897 6 On 27 July 2020 The Real Media Collective filed a submission6 supporting the variation of the Graphic Arts Award in the terms sought by the AMWU. [2020] FWCFB 3925 3 [10] 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 <PR721299>