13. Industrial

E. Remuneration & Wages

i.  Legislation

As of the last update, we are not aware of any COVID-19 related legislation in this area, other than what we have set out in the Public Service and Awards sections.

ii.  Case law

In conducting the Fair Work Commission’s annual wage review, the Expert Panel is required under s 285 of the Fair Work Act 2009 (Cth) to review:
  • minimum wages in modern awards and transitional instruments, and
  • the national minimum wage order from the previous annual wage review.

The timetable for the Annual Wage Review 2019-20 was delayed to allow the review to take account of the economic impact of COVID-19, while also being completed by 30 June 2020 (as required by s 285(1) of the Fair Work Act 2009 (Cth)): Annual Wage Review 2019-2020 [2020] FWCFB 1804. The timetable went through multiple variations, with the Commission recognising that "the consequences of the COVID-19 pandemic is drawing heavily on the resources of each party" and that further changes to the timetable would be necessary to "provide parties with an opportunity to comment on a rapidly changing environment and relevant economic data as it emerges": Annual Wage Review 2019–20 [2020] FWC 1544, [3]-[34]; Annual Wage Review 2019–20 [2020] FWCFB 1804. However, the Commission declined to determine whether the COVID-19 pandemic constitutes "exceptional circumstances" within the meaning of ss 286(2) and 287(4) of the Fair Work Act 2009 (Cth), which would justify a delay of the usual 1 July 2020 operative date by two weeks: Annual Wage Review 2019–20 [2020] FWCFB 1804, [19].

The Annual Wage Review 2019-20 was published on 19 June 2020:  Annual Wage Review 2019-20 [2020] FWCFB 3500.
  • It notes that "[t]he outbreak of the coronavirus, COVID-19, and the measures put in place to contain the spread of the virus have led to significant shifts in the way work and society is conducted, with substantial economic consequences": [2]. 
  • It outlines the background to, and current status of, the pandemic in a section entitled "The COVID-19 Pandemic": [23]-[192]. 
  • The majority notes that "[i]n our view there are significant downside risks in the period ahead. These include that the international outlook remains highly uncertain, the future of fiscal support to the domestic economy (including through JobKeeper) is unknown and there is the risk of a second wave of COVID-19 infection and the reimposition of extensive restrictions": [101]. As a result, the economic considerations weighed in favour of greater moderation in terms of the outcome of the Review: [102].
  • The Review awards an increase to modern award minimum wages of 1.75%: [141]. Increases to awards will start on 3 different dates for different groups of awards.

The time for commencement of variations to modern awards in accordance with the Commission’s ‘4 yearly review of modern awards’ may also be affected: 4 yearly review of modern awards [2020] FWCFB 2124, [561]-[563]. 
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