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13. Industrial
A. Awards
Several industry awards have been varied in response to the COVID-19 pandemic. Variations have been made to the duties employees may be required to perform, to the hours employees may work, where the employee may work, and to leave entitlements. See also the Remuneration and Wages and Leave Entitlements sections of this Chapter.
i. Legislation
Commonwealth:
Fair Work Commission Determination MA000009 PR717757 – Hospitality Industry (General) Award 2010 (24 March 2020)
Variation of awards on the initiative of the Commission (AM2020/12) [2020] FWCFB 1837 (8 April 2020)
Fair Work Commission Determination PR718143 – Additional measures during the COVID-19 pandemic (AM2020/12) (8 April 2020)
ii. Case law
Agreements reached in relation to variations to modern awards require the Fair Work Commission to determine, before the agreement can be given effect, that the proposed variations are necessary to achieve the modern award objective in s 134 of the Fair Work Act 2009 (Cth).
The Fair Work Commission was satisfied that proposed variations to the Hospitality Industry (General) Award 2010 in response to COVID-19 — which were directed to providing targeted flexibility in relation to the duties of employees in the hospitality sector, as well as their hours of work and annual leave — were necessary to achieve the modern award objective, having regard to (Australian Hotels Association and United Workers’ Union [2020] FWCFB 1574, [43]-[64]):
Further, the Commission held that a proposed clause empowering employers to require employees to take annual leave was reasonable (within the meaning of s 93(3) of the Fair Work Act 2009 (Cth)), having regard to its limited duration, the extraordinary circumstances of COVID-19 and that the clause required employers to take account of employees’ personal circumstances ([65]-[72]).
The Commission was satisfied that proposed variations to the Clerks-Private Sector Award 2010 in response to COVID-19 — which are directed to providing flexibility in relation to employee duties, hours of work, employee engagement, annual leave and the notice period for a close-down — were necessary to achieve the modern award objective, having regard to:
See Joint application by the Australian Chamber of Commerce and Industry and the Australian Industry Group [2020] FWCFB 1630, [12]-[14], [24]; Application to vary the Clerks – Private Sector Award 2010 [2020] FWCFC 1690, [94].
Further, the Commission held that a proposed clause empowering employers to require employees to take annual leave was reasonable (within the meaning of s 93(3) of theFair Work Act 2009 (Cth)), having regard to its limited duration, the extraordinary circumstances of COVID-19 and that the clause would require employers to give notice and would not result in an employee having less than two weeks’ annual leave (Australian Chamber of Commerce and Industry and the Australian Industry Group [2020] FWCFB 1630, [15]-[21]; Application to vary the Clerks – Private Sector Award 2010 [2020] FWCFC 1690, [94]).
The Commission was also satisfied that proposed variations to the Restaurant Industry Award 2010 in response to COVID-19 — which were directed to providing flexibility in relation to employee duties, hours of work, annual leave and the notice period for a close-down — were necessary to achieve the modern award objective, having regard to:
See Application by the Restaurant and Catering Industrial [2020] FWCFB 1715, [12]-[14], [24]; Application to vary the Restaurant Industry Award 2010 [2020] FWCFB 1741, [4]-[7].
As it did in respect of the Hospitality Industry (General) Award 2010 and the Clerks-Private Sector Award 2010, the Commission held that a proposed clause empowering employers to require employees to take annual leave was reasonable within the meaning of s 93(3) of the Fair Work Act 2009 (Cth), having regard to its limited duration, the extraordinary circumstances of COVID-19, and that the clause would require employers to give notice and consider an employee’s personal circumstances: Application by the Restaurant and Catering Industrial [2020] FWCFB 1715, [16]-[21]; Application to vary the Restaurant Industry Award 2010 [2020] FWCFB 1741, [4]-[7].
The Fair Work Commission was also satisfied that proposed variations to the Educational Services (Schools) General Staff Award 2010 — which were directed to mitigating the impact of COVID-19 on employees and employers covered by the award, by empowering employers to direct employees to reduce their hours by up to 25% and award certain operational flexibilities — was necessary to achieve the modern award objective, having regard to:
See Joint application by Independent Schools Victoria and Independent Education Union of Australia [2020] FWCFB 2112 and Application to vary the Educational Services (Schools) General Staff Award 2010 [2020] FWCFB 2108.
The Commission was also satisfied that the following amendments to the Vehicle Manufacturing, Repair, Services and Retail Award 2010 were necessary to achieve the modern award objectives:
See Victorian Automobile Chamber of Commerce and Ors [2020] FWCFB 2367 and Joint application to vary the Vehicle Manufacturing, Repair, Services and Retail Award 2010 [2020] FWCFB 2356, [7]-[38].
The Queensland Industrial Relations Commission has approved variations to the Queensland Local Government Industry (Stream A) Award – State 2017. The new schedules were aimed at assisting councils to maximise retention of their existing workforce by amending employment conditions thereby enabling easier redeployment of workers who are or may be displaced from their normal roles as a consequence of the pandemic. The new schedules cover a number of topics including: 'operational flexibility'; 'working from home'; 'temporary reduction in ordinary hours'; 'split shifts'; 'pandemic leave'; 'stand down'; 'annual leave; and long service leave'. The Commission acknowledged that the COVID-19 Pandemic had presented local governments throughout Queensland with unique challenges, and considered that the proposed amendments provided an appropriate and measured response to those challenges: Local Government Association of Queensland Ltd v Queensland Services, Industrial Union of Employees & Ors [2020] QIRC 65, [5], [12].
The Fair Work Commission’s consideration of a proposed variation to the Social, Community, Home Care and Disability Services Industry Award 2010, to take account of the pandemic, is ongoing, although the Commission has expressed certain, limited, views: Application to vary the Social, Community, Home Care and Disability Services Industry Award 2010 [2020] FWCFB 2343.
Similarly, the Fair Work Commission was provisionally satisfied that a proposed variation to the Fast Food Industry Award 2010 was necessary to achieve the modern awards objective: Application by Australian Industry Group [2020] FWCFB 2301.
Where the relevant parties agree on the form of a proposed variation to a modern award, the Fair Work Commission may abridge the notice period and hearing process that would otherwise apply to an application to vary the award: Australian Hotels Association and United Workers’ Union [2020] FWCFB 1574, [8]-[15].
The Fair Work Commission may also vary a modern award, to take account of the circumstances of COVID-19, at its own initiative. The Commission has varied 99 awards to insert a new "Schedule X" which allows for additional measures in response to COVID-19, including the taking of “pandemic leave”, as a short-term measure to address a regulatory gap arising from the circumstances of COVID-19: Variation of awards on the initiative of the Commission [2020] FWCFB 1760, [55]; Variation of awards on the initiative of the Commission [2020 FWCFB 1837, [133]-[145]. The Commission has declined to extend the operation of Schedule X past 30 June 2020 on its own motion: Variation of awards on the initiative of the Commission [2020] FWCFB 3281, [4].
The coverage and application of pandemic leave to the health industry is the subject of ongoing consideration by the Commission: Health Sector Awards — Pandemic Leave [2020] FWC 1905; Health Sector Awards — Pandemic Leave [2020] FWC 1956; Health Sector Awards – Pandemic Leave [2020] FWC 2273.
A. Awards
Several industry awards have been varied in response to the COVID-19 pandemic. Variations have been made to the duties employees may be required to perform, to the hours employees may work, where the employee may work, and to leave entitlements. See also the Remuneration and Wages and Leave Entitlements sections of this Chapter.
i. Legislation
Commonwealth:
Fair Work Commission Determination MA000009 PR717757 – Hospitality Industry (General) Award 2010 (24 March 2020)
- Inserts “Schedule L—Award Flexibility During the COVID-19 Pandemic” into the Award.
Variation of awards on the initiative of the Commission (AM2020/12) [2020] FWCFB 1837 (8 April 2020)
- Varied the 99 modern awards set out in Attachment A 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.
- Summary of Decision
Fair Work Commission Determination PR718143 – Additional measures during the COVID-19 pandemic (AM2020/12) (8 April 2020)
- Inserts “Schedule X—Additional Measures During the COVID-19 Pandemic” into the following Awards:
- Hospitality Industry (General) Award 2010;
- Clerks—Private Sector Award 2010; and
- Restaurant Industry Award 2010.
ii. Case law
Agreements reached in relation to variations to modern awards require the Fair Work Commission to determine, before the agreement can be given effect, that the proposed variations are necessary to achieve the modern award objective in s 134 of the Fair Work Act 2009 (Cth).
The Fair Work Commission was satisfied that proposed variations to the Hospitality Industry (General) Award 2010 in response to COVID-19 — which were directed to providing targeted flexibility in relation to the duties of employees in the hospitality sector, as well as their hours of work and annual leave — were necessary to achieve the modern award objective, having regard to (Australian Hotels Association and United Workers’ Union [2020] FWCFB 1574, [43]-[64]):
- relative living standards and the needs of the low paid (for the purposes of s 134(1)(a) of the Fair Work Act 2009 (Cth));
- the need to promote social inclusion through increased workforce participation (for the purposes of s 134(1)(c) of the Fair Work Act 2009 (Cth));
- the need to promote flexible modern work practices and the efficient and productive performance of work (for the purposes of s 134(1)(d) of the Fair Work Act 2009 (Cth));
- the likely impact of the variation on business, including on productivity, employment costs and the regulatory burden (for the purposes of s 134(1)(f) of the Fair Work Act 2009 (Cth)); and
- the likely impact of the variation on employment growth, inflation and the sustainability, performance and competitiveness of the national economy (for the purposes of s 134(1)(h) of the Fair Work Act 2009 (Cth)).
Further, the Commission held that a proposed clause empowering employers to require employees to take annual leave was reasonable (within the meaning of s 93(3) of the Fair Work Act 2009 (Cth)), having regard to its limited duration, the extraordinary circumstances of COVID-19 and that the clause required employers to take account of employees’ personal circumstances ([65]-[72]).
The Commission was satisfied that proposed variations to the Clerks-Private Sector Award 2010 in response to COVID-19 — which are directed to providing flexibility in relation to employee duties, hours of work, employee engagement, annual leave and the notice period for a close-down — were necessary to achieve the modern award objective, having regard to:
- relative living standards and the needs of the low paid (for the purposes of s 134(1)(a) of the Fair Work Act 2009 (Cth));
- the need to promote social inclusion through increased workforce participation (for the purposes of s 134(1)(c) of the Fair Work Act 2009 (Cth));
- the likely impact of the variation on business, including on productivity, employment costs and the regulatory burden (for the purposes of s 134(1)(f) of the Fair Work Act 2009 (Cth)); and
- the likely impact of the variation on employment growth, inflation and the sustainability, performance and competitiveness of the national economy (for the purposes of s 134(1)(h) of the Fair Work Act 2009 (Cth)).
See Joint application by the Australian Chamber of Commerce and Industry and the Australian Industry Group [2020] FWCFB 1630, [12]-[14], [24]; Application to vary the Clerks – Private Sector Award 2010 [2020] FWCFC 1690, [94].
Further, the Commission held that a proposed clause empowering employers to require employees to take annual leave was reasonable (within the meaning of s 93(3) of theFair Work Act 2009 (Cth)), having regard to its limited duration, the extraordinary circumstances of COVID-19 and that the clause would require employers to give notice and would not result in an employee having less than two weeks’ annual leave (Australian Chamber of Commerce and Industry and the Australian Industry Group [2020] FWCFB 1630, [15]-[21]; Application to vary the Clerks – Private Sector Award 2010 [2020] FWCFC 1690, [94]).
The Commission was also satisfied that proposed variations to the Restaurant Industry Award 2010 in response to COVID-19 — which were directed to providing flexibility in relation to employee duties, hours of work, annual leave and the notice period for a close-down — were necessary to achieve the modern award objective, having regard to:
- relative living standards and the needs of the low paid (for the purposes of s 134(1)(a) of the Fair Work Act 2009 (Cth));
- the need to promote social inclusion through increased workforce participation (for the purposes of s 134(1)(c) of the Fair Work Act 2009 (Cth));
- the likely impact of the variation on business, including on productivity, employment costs and the regulatory burden (for the purposes of s 134(1)(f) of the Fair Work Act 2009 (Cth)); and
- the likely impact of the variation on employment growth, inflation and the sustainability, performance and competitiveness of the national economy (for the purposes of s 134(1)(h) of the Fair Work Act 2009 (Cth)).
See Application by the Restaurant and Catering Industrial [2020] FWCFB 1715, [12]-[14], [24]; Application to vary the Restaurant Industry Award 2010 [2020] FWCFB 1741, [4]-[7].
As it did in respect of the Hospitality Industry (General) Award 2010 and the Clerks-Private Sector Award 2010, the Commission held that a proposed clause empowering employers to require employees to take annual leave was reasonable within the meaning of s 93(3) of the Fair Work Act 2009 (Cth), having regard to its limited duration, the extraordinary circumstances of COVID-19, and that the clause would require employers to give notice and consider an employee’s personal circumstances: Application by the Restaurant and Catering Industrial [2020] FWCFB 1715, [16]-[21]; Application to vary the Restaurant Industry Award 2010 [2020] FWCFB 1741, [4]-[7].
The Fair Work Commission was also satisfied that proposed variations to the Educational Services (Schools) General Staff Award 2010 — which were directed to mitigating the impact of COVID-19 on employees and employers covered by the award, by empowering employers to direct employees to reduce their hours by up to 25% and award certain operational flexibilities — was necessary to achieve the modern award objective, having regard to:
- relative living standards and the needs of the low paid (for the purposes of s 134(1)(a) of the Fair Work Act 2009 (Cth));
- the need to encourage collective bargaining (for the purposes of s 134(1)(b) of the Fair Work Act 2009 (Cth));
- the need to promote social inclusion through increased workforce participation (for the purposes of s 134(1)(c) of the Fair Work Act 2009 (Cth));
- the need to promote flexible modern work practices and the efficient and productive performance of work and the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden (for the purposes of s 134(1)(d) and (f) of the Fair Work Act 2009 (Cth)); and
- the likely impact of any exercise of modern award power on employment growth, inflation and the sustainability, performance and competitiveness of the national economy (for the purposes of s 134(1)(h) of the Fair Work Act 2009 (Cth)).
See Joint application by Independent Schools Victoria and Independent Education Union of Australia [2020] FWCFB 2112 and Application to vary the Educational Services (Schools) General Staff Award 2010 [2020] FWCFB 2108.
The Commission was also satisfied that the following amendments to the Vehicle Manufacturing, Repair, Services and Retail Award 2010 were necessary to achieve the modern award objectives:
- a clause regarding operational flexibility;
- allowing an employer to temporarily reduce the hours of work for full-time and part-time employees, in certain circumstances and subject to safeguards;
- providing that in certain circumstances an employer may request that an employee take paid annual leave and the employee is obliged to consider, and not unreasonably refuse, the request; and
- in circumstances where an employer has decided to close down for reasons attributable to the COVID-19 pandemic or Government initiatives to slow the transmission of the coronavirus, an employer may require an employee to take paid annual leave, subject to safeguards.
See Victorian Automobile Chamber of Commerce and Ors [2020] FWCFB 2367 and Joint application to vary the Vehicle Manufacturing, Repair, Services and Retail Award 2010 [2020] FWCFB 2356, [7]-[38].
The Queensland Industrial Relations Commission has approved variations to the Queensland Local Government Industry (Stream A) Award – State 2017. The new schedules were aimed at assisting councils to maximise retention of their existing workforce by amending employment conditions thereby enabling easier redeployment of workers who are or may be displaced from their normal roles as a consequence of the pandemic. The new schedules cover a number of topics including: 'operational flexibility'; 'working from home'; 'temporary reduction in ordinary hours'; 'split shifts'; 'pandemic leave'; 'stand down'; 'annual leave; and long service leave'. The Commission acknowledged that the COVID-19 Pandemic had presented local governments throughout Queensland with unique challenges, and considered that the proposed amendments provided an appropriate and measured response to those challenges: Local Government Association of Queensland Ltd v Queensland Services, Industrial Union of Employees & Ors [2020] QIRC 65, [5], [12].
The Fair Work Commission’s consideration of a proposed variation to the Social, Community, Home Care and Disability Services Industry Award 2010, to take account of the pandemic, is ongoing, although the Commission has expressed certain, limited, views: Application to vary the Social, Community, Home Care and Disability Services Industry Award 2010 [2020] FWCFB 2343.
Similarly, the Fair Work Commission was provisionally satisfied that a proposed variation to the Fast Food Industry Award 2010 was necessary to achieve the modern awards objective: Application by Australian Industry Group [2020] FWCFB 2301.
Where the relevant parties agree on the form of a proposed variation to a modern award, the Fair Work Commission may abridge the notice period and hearing process that would otherwise apply to an application to vary the award: Australian Hotels Association and United Workers’ Union [2020] FWCFB 1574, [8]-[15].
The Fair Work Commission may also vary a modern award, to take account of the circumstances of COVID-19, at its own initiative. The Commission has varied 99 awards to insert a new "Schedule X" which allows for additional measures in response to COVID-19, including the taking of “pandemic leave”, as a short-term measure to address a regulatory gap arising from the circumstances of COVID-19: Variation of awards on the initiative of the Commission [2020] FWCFB 1760, [55]; Variation of awards on the initiative of the Commission [2020 FWCFB 1837, [133]-[145]. The Commission has declined to extend the operation of Schedule X past 30 June 2020 on its own motion: Variation of awards on the initiative of the Commission [2020] FWCFB 3281, [4].
The coverage and application of pandemic leave to the health industry is the subject of ongoing consideration by the Commission: Health Sector Awards — Pandemic Leave [2020] FWC 1905; Health Sector Awards — Pandemic Leave [2020] FWC 1956; Health Sector Awards – Pandemic Leave [2020] FWC 2273.
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