[2020] FWCFB 3401
FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.157 - FWC may vary etc. modern awards if necessary to achieve modern awards objective

Application to vary the Restaurant Industry Award 2020
(AM2020/36)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT

MELBOURNE, 29 JUNE 2020

Application to vary modern award to achieve the modern awards objective – application to extend the operation of Schedule I–Award Flexibility During the COVID-19 Pandemic

1. Background

[1] On 31 March 2020 we issued a Decision 1 granting an application filed by Restaurant and Catering Industrial (RCI) to insert a new schedule. Schedule I – Award flexibility during the COVID-19 Pandemic, into the Restaurant Industry Award 2010RCI, the United Workers Union (UWU) and the ACTU had been in discussions to reach a consent position on changes to the Restaurant Award which could mitigate against the impact of the COVID-19 pandemic on the employees and employers covered by the award. The application was the product of that dialogue and was moved by consent of the parties. The new schedule came into operation on 31 March 2020 and will cease to operate on 30 June 2020. The Restaurant Industry Award 2010 was subsequently varied and renamed as Restaurant Industry Award 2020 (the Restaurant Award).

[2] On 26 June 2020, RCI filed an application (Matter No. AM2020/36) (the Application) seeking to insert a new schedule to replace the existing Schedule I. The modified Schedule I maintains some of the flexibilities available under the existing schedule and includes greater protections for employees. The main differences between the existing and proposed schedules are as follows:

•  The proposed schedule excludes employees employed by an employer that qualifies for the JobKeeper scheme.

•  The proposed schedule requires the employer to advise the employee in writing that the employer consents to arbitration.

•  The proposed schedule provides that a direction in relation to hours of work can only be given in certain circumstances (because the employee cannot be usefully employed due to COVID, the direction is reasonable and given in writing).

•  The proposed schedule includes some additional safeguards around annual leave.

•  The proposed schedules does not include the close down provisions at clause I.2.4 of the existing schedule.

[3] The proposed schedule will operate from 1 July 2020 until 27 September 2020.

[4] A marked-up version of the current schedule showing the proposed changes is set out at Attachment A.

[5] The UWU supports the application and has been involved in the negotiations surrounding the proposed draft determination.

[6] On 26 June 2020 we issued a Statement 2 (the June 2020 Statement) in relation to the Application and expressed the provisional view that the variation proposed was necessary to achieve the modern awards objective. Any interested party was invited to file a written submission supporting or opposing the Application and our provisional view, by 4pm on Monday 29 June 2020.

[7] In the June 2020 Statement we said that if no submissions were filed opposing the Application and our provisional view then we would grant the Application and vary the Restaurant Award in the terms sought. No such submissions were received; accordingly, for the reasons which follow, we grant the Application and will vary the award.

2. COVID-19 pandemic

[8] The application arises from the unique set of circumstances pertaining to the COVID-19 pandemic.

[9] The Commission has published an information note on the Government responses to the COVID-19 pandemic on its website, which was last updated on 26 June 2020 . The information note outlines the measures taken by both federal and state governments to put restrictions on social gatherings and non-essential businesses, as well as the assistance provided to support businesses and households.

[10] The Application notes (at [13] of Annexure B) that:

‘The underlying economic conditions and challenges facing the Industry, which provided the context of the Full Bench decision, continue. Despite an easing of restrictions by governments and associated signs of improvement, the Industry experiences acute challenges.’

[11] An Information Note, prepared by Commission staff, on the impact of COVID-19 on employees and employers in the Accommodation and Food services sector was published on 26 June 2020. The Information Note states that:

‘This industry has been significantly impacted due to the restrictions on social gatherings, with few businesses operating as normal and a large decline in employment.’ 3

[12] Relevantly, between 10 June 2020 and 17 June 2020, only 4 per cent of businesses in Accommodation and food services were operating as normal (the lowest proportion across industries) compared with 24 per cent of businesses across all industries 4. That is, 96 per cent of businesses were operating under modified conditions (i.e., shifting more operations online, or operating with a reduced workforce) compared with 73 per cent of businesses across all industries.

[13] Table 6 in the Information Note presents changes in revenue compared to the same time last year by industry. Around 93 per cent of businesses in Accommodation and food services reported a decrease in revenue compared to the same time last year, which is higher than for all industries (68.8 per cent).

[14] Chart 1 below compares the change in payroll jobs from Weekly Payroll Jobs and Wages in Australia between February and May 2020 (periods aligning with the Labour Force survey (LFS) reference periods) and the quarterly change in LFS employment in May 2020. The decline in payroll jobs (−6.8 per cent) and employment (−6.2 per cent) across all industries was broadly consistent between the data sources. Industries that experienced the largest decline in payroll jobs also experienced a similar decline in employment in May 2020.

Chart 1: Change in payroll jobs and employment in the May quarter, by industry

Note: Payroll data are in original terms. Labour force data are in seasonally adjusted terms. Payroll data calculated between 8 February and 9 May 2020 to align with the respective Labour Force survey reference periods.

Source: ABS, Weekly Payroll Jobs and Wages in Australia, Week ending 30 May 2020, Catalogue No. 6160.0.55.001; ABS, Labour Force, Australia, Detailed, Quarterly, May 2020, Catalogue No. 6291.0.55.003.

[15] Total payroll jobs declined by 30.3 per cent in Accommodation and food services between February and May 2020, while employment measured from the LFS declined by 31.2 per cent. 5

[16] Chart 2 below presents change in job vacancies by industry in the May quarter 2020. Total job vacancies fell 45.8 per cent in the May quarter 2020 to be 43.2 per cent lower over the year. Vacancies in Accommodation and food services fell 66 per cent in the May quarter 2020 and 64.3 per cent over the year.

Chart 2: Change in job vacancies, May quarter 2020

Note: Data are in original terms.

Source: ABS, Job Vacancies, Australia, May 2020, Catalogue No. 6354.0.

[17] As noted by the majority in the 2019-20 Annual Wage Review decision, the COVID-19 pandemic ‘casts a large shadow over the current economic environment’ 6 and the future is uncertain:

‘Despite the success in flattening the curve, health experts and the Commonwealth Government have advised that some level of restrictions on movement and gatherings, as well as border controls and social distancing measures, are likely to continue for some time, possibly until a vaccine is developed. The highly infectious nature of COVID-19 and concerns about a second wave of infections add to the uncertainty.

The form and shape of our pathway to recovery is uncertain and heavily contested. However, it is generally accepted that the pathway to recovery is largely dependent on how well the spread of the virus is contained, which will affect the extent to which restrictions can be eased with a consequent impact on business and consumer confidence.

The pace of recovery beyond the June quarter 2020 is especially uncertain.’ 7 (Footnotes omitted)

[18] Plainly, the COVID-19 pandemic has had, and continues to have, a substantial adverse impact on the Accommodation and Food services sector.

3. Consideration

[19] As we have mentioned, the Application was made with the consent of the key industrial parties. A Statement in relation to the Application was published on the Commission’s website and sent to all subscribers on 26 June 2020. Any interested party was provided with an opportunity to respond to the Application. In these circumstances, we are satisfied that we have met our obligation to afford procedural fairness to those affected by the Application.

[20] The Commission may make a determination varying a modern award if the Commission is satisfied the determination is necessary to achieve the modern awards objective. The modern awards objective is in s.134 of the Fair Work Act 2009 (Cth) (the Act) and provides as follows:

‘What is the modern awards objective?

134(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and

(b) the need to encourage collective bargaining; and

(c) the need to promote social inclusion through increased workforce participation; and

(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and

(da) the need to provide additional remuneration for:

(i) employees working overtime; or

(ii) employees working unsocial, irregular or unpredictable hours; or

(iii) employees working on weekends or public holidays; or

(iv) employees working shifts; and

(e) the principle of equal remuneration for work of equal or comparable value; and

(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.’

This is the modern awards objective.

When does the modern awards objective apply?

(2) The modern awards objective applies to the performance or exercise of the FWC’s modern award powers, which are:

(a) the FWC’s functions or powers under this Part; and

(b) the FWC’s functions or powers under Part 2-6, so far as they relate to modern award minimum wages.

Note: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).’

[21] The modern awards objective is to ‘ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions’, taking into account the particular considerations identified in ss.134(1)(a)–(h) (the s.134 considerations).

[22] The modern awards objective is very broadly expressed. 8 It is a composite expression which requires that modern awards, together with the National Employment Standards (NES), provide ‘a fair and relevant minimum safety net of terms and conditions’, taking into account the matters in ss.134(1)(a)–(h).9 Fairness in this context is to be assessed from the perspective of the employees and employers covered by the modern award in question.10

[23] The obligation to take into account the s.134 considerations means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process. 11 No particular primacy is attached to any of the s.134 considerations12 and not all of the matters identified will necessarily be relevant in the context of a particular proposal to vary a modern award.

[24] It is not necessary to make a finding that the award fails to satisfy one or more of the s.134 considerations as a prerequisite to the variation of a modern award. 13 Generally speaking, the s.134 considerations do not set a particular standard against which a modern award can be evaluated; many of them may be characterised as broad social objectives.14 In giving effect to the modern awards objective the Commission is performing an evaluative function taking into account the matters in s.134(1)(a)–(h) and assessing the qualities of the safety net by reference to the statutory criteria of fairness and relevance.

[25] Section 138 of the Act emphasises the importance of the modern awards objective:

‘Section 138 Achieving the modern awards objective

A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.’

[26] What is ‘necessary’ to achieve the modern awards objective in a particular case is a value judgment, taking into account the s.134 considerations to the extent that they are relevant having regard to the context, including the circumstances pertaining to the particular modern award, the terms of any proposed variation and the submissions and evidence. 15

[27] In its submission in support of the Application (at Annexure B to the Application), RCI submits:

‘The current application seeks to extend the operation of Schedule I for a limited period. The materially negative effects of the Pandemic continue, despite an easing of restrictions, especially in the Industry. The application also moves with the consent of the relevant industrial parties.

The considerations, which justified the Full Bench’s conclusion that the variations met the MAO, remain relevant. Those considerations support the draft determination to this application.

…

The proposed clauses in the draft determination will assist employers in the Industry to maintain a level of viability and employment retention. The applicants respectfully submit that the application to vary the Award be granted.’ 16

[28] It was common ground that the considerations in s.134, (da), (e) and (g) are not relevant to the Application. We deal with the other considerations below.

s. 134(1)(a): relative living standards and the needs of the low paid

[29] A threshold of two-thirds of median full-time wages provides ‘a suitable and operational benchmark for identifying who is low paid,’ 17 within the meaning of s.134(1)(a). Using this benchmark, employees paid at classification levels 1 to 5 in the Restaurant Award are ‘low paid’ within the meaning of s.134(1)(a).

[30] We accept that the proposed variation may result in low paid employees working less hours and consequently receiving less pay. It is axiomatic that such a reduction in pay will mean that they are less able to meet their needs. But, as noted in our earlier decision which inserted the current Schedule I into the award, employers and employees face an invidious choice and the retention of as many employees as possible in employment, albeit on reduced hours, is plainly a priority.

[31] We also note the agreed measures to mitigate the impact of reduced hours, particularly by maintaining relevant accruals and the requirement for consultation with affected employees and, where appropriate, with the UWU.

s. 134(1)(b) the need to encourage collective bargaining

[32] The proposed variation may be said to decrease the incentive for employers to bargain; but it is also likely that employee and employer decision making about whether or not to bargain is influenced by a complex mix of factors. It is also relevant that the proposed variation is time limited. Section 134(1)(b) speaks of ‘the need to encourage collective bargaining’. We are not persuaded that the proposed insertion of Schedule I would ‘encourage collective bargaining’. It follows that this consideration weighs against the variation proposed.

s. 134(1)(c) the need to promote social inclusion through increased workforce participation

[33] This consideration is directed at obtaining employment. The package of measures will facilitate the parties’ shared objective of retaining as many employees in employment as practicable in the current crisis.

s. 134(1)(d) and (f) 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.

[34] It is convenient to deal with these considerations together. The proposed variation will promote flexibility and the ‘efficient and productive performance of work’ and will reduce the regulatory burden on business. These are matters which weigh in favour of making the variation sought.

s.134(1)(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

[35] We accept that the variation sought will have some, albeit limited, positive impact on the sustainability performance and competitiveness of the national economy and that this is a factor which weighs in favour of granting the Application.

[36] Additional considerations apply to the proposed annual leave flexibilities (in proposed clause I.9.3). Subsections 93(3) and (4) are relevant in this regard. Subject to the requirement to take leave being reasonable, a modern award term which provides that an employee can be required to take a period of annual leave is a term of the type contemplated by s.93(3). The issue in the present matter is whether proposed clause I.9.3 is ‘reasonable’ within the meaning of s.93(3).

[37] Clause I.9.3 provides that an employer may request that an employee take paid annual leave; the employee must consider the request and must not unreasonably refuse the request. The term in question is of limited duration and is a response to an extraordinary set of circumstances. Further, the right to request is subject to a number of safeguards:

•  the employer must consider the employee’s personal circumstances;

•  the request must not result in the employee having a balance of paid annual leave of fewer than 2 weeks;

•  an employer can only make a request where it is reasonable in all the circumstances and if the request is made for reasons attributable to the COVID-19 pandemic or Government initiatives to slow the transmission of COVID-19 and is necessary to assist the employer to avoid or minimise the loss of employment; and

•  a period of leave must start before 13 September 2020 but may end after that date.

[38] We are satisfied that proposed clause I.9.3 is a permitted term and is ‘reasonable’ within the meaning of s.93(3).

[39] As to the proposed clause I.9.3(f) – the ability to take twice as much annual leave at half the rate of pay for all or part of any period of annual leave – we are satisfied that the proposed term is an ancillary or incidental term permitted by s.55(4).

4. Conclusion

[40] The terms in the proposed Schedule I are terms that may be included in a modern award pursuant to ss.136(1)(a) and (c), and ss.139(1)(a), (c), (h) and (j) and s.142(1) of the Fair Work Act 2009.

[41] We are satisfied that the variation proposed is necessary to achieve the modern awards objective and in so deciding we have taken into account the considerations in s.134(1)(a) to (h), insofar as they are relevant. Once varied, the Restaurant Award will only include terms to the extent necessary to achieve the modern awards objective.

[42] For the reasons set out above, we will make the variation determination sought. The determination will come into operation on 1 July 2020. As required by s.165(3), the determination does not take effect in relation to a particular employee until the start of the first pay period that starts on or after the day the determination comes into operation.

[43] A copy of the variation determination is set out at Attachment B.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR720579>

ATTACHMENT A

Schedule I —Award Flexibility During the COVID-19 Pandemic

I.1 Schedule I operates from 31 March 2020 until 30 June 2020. The period of operation can be extended on application.

I.2 During the operation of Schedule I, the following provisions apply:

I.1 The provisions of Schedule I are aimed at preserving the ongoing viability of businesses and preserving jobs during the COVID-19 pandemic and not to set any precedent in relation to award entitlements after its expiry date.

I.2 Schedule I operates from 1 July 2020 until 27 September 2020. The period of operation can be extended on application.

I.3 A direction under this Schedule ceases to have effect when it is withdrawn, revoked or replaced by the employer, or on 27 September 2020, whichever is earlier.

I.4 Schedule I does not apply to any employee employed:

I.5 If an employer or employee becomes entitled to Jobkeeper payments for an employee, the terms of Schedule I will not apply in relation to that employer and that employee.

I.6 Any dispute regarding the operation of Schedule I may be referred to the Fair Work Commission in accordance with Clause 34 – Dispute Resolution.

I.7 Any direction given by an employer under this Schedule is not valid unless the employee is advised in writing that the employer consents to a dispute arising from the direction being settled by the Fair Work Commission through arbitration in accordance with Clause 9 – Dispute resolution and section 739(4) of the Act.

I.8 During the operation of Schedule I, the following provisions apply:

I.2.1 I.9.1 Classifications and duties

(a) As directed by their employer, where necessary employees will perform any duties that are within their skill and competency regardless of their classification under clause 14—Classifications and Schedule A—Classification Structure and Definitions, provided that the duties are safe and the employee is licensed and qualified to perform them.

(b) Clause 18.8—Higher duties will apply to employees engaged on duties carrying a higher rate than their ordinary classification.

I.2.2 I.9.2 Hours of work—full-time and part-time employees

(a) Subject to clause I.9.2(c) I.2.2(c), and despite clause 9 - Full-time employees employment and requirements for notice in clauses 15.3 (Roster), and 15.4 (Rosters), an employer may direct a full-time employee to work an average of between 22.8 and 38 ordinary hours per week. The employee will be paid on a pro-rata basis. The arrangements for working ordinary hours in clause 15 – Ordinary hours of work and rostering arrangements will apply on a pro-rata basis.

(b) Subject to clause I.9.2(c) I.2.2(c) and despite clause 10.4(a) (Part-time employees employment), and the requirements for notice in clauses 15.3 and 15.4 (Rosters), an employer may direct a part-time employee to work an average of between 60% and 100% of their guaranteed hours per week, or an average of between 60% and 100% of the guaranteed hours per week over the roster cycle.

(c) Prior to any employer issuing any direction under clause I.9.2(a) or (b) I.2.2(a) or (b) an employer must:

(d) An employee given a direction under clause I.9.2(a) or (b) I.2.2(a) or (b) will continue to accrue annual leave and personal leave, and any other applicable accruals under this award, based on each full-time or part-time employee’s ordinary hours of work prior to the commencement of Schedule I.

(e) If an employee given a direction under clause I.9.2(a) or (b) I.2.2(a) or (b) takes a period of paid annual leave or personal leave, the payment for that leave will be based on the full-time or part-time employee’s ordinary hours of work prior to the commencement of Schedule I.

(f) An employee given a direction under clause I.9.2(a) or (b) may make any of the following requests, and the employer must consider the request and must not unreasonably refuse the request:

I.9.3 I.2.3 Annual leave

(a) Despite clauses Error! Reference source not found., Error! Reference source not found. and Error! Reference source not found. (Annual leave), an employer may, subject to considering an employee’s personal circumstances, direct the employee to take annual leave with 24 hours’ notice.

(a) Subject to clause I.9.3(c) and I.9.3(f) and despite clauses 25.4, 25.5 and 25.6 (Annual leave), an employer may, subject to considering an employee’s personal circumstances, request the employee in writing to take paid annual leave.

(b) If the employer gives the employee a request to take paid annual leave, and complying with the request will not result in the employee having a balance of paid annual leave of fewer than 2 weeks, the employee must consider the request and must not unreasonably refuse the request.

(c) An employer may only make a request under clause L.9.3(a) where it is reasonable in all the circumstances.

(d) A period of leave must start before 13 September 2020 but may end after that date.

 

(e) An employer can only request that an employee take annual leave pursuant to this clause if the request is made for reasons attributable to the COVID-19 pandemic or Government initiatives to slow the transmission of COVID-19 and is necessary to assist the employer to avoid or minimise the loss of employment.

(f) During the period of operation of Schedule I, instead of taking paid annual leave at the rate of pay required by s.90 of the Fair Work Act 2009 (Cth), an employer and an employee may agree to the employee taking twice as much annual leave at half the rate of pay for all or part of any period of annual leave.

(g) Clause I.9.3(a) I.2.3(a) does not prevent an employer and an employee agreeing to the employee taking annual leave at any time.

I.9.4 I.2.4 Close-down

(a) Instead of clause 25.4 (annual Leave), and subject to clause A.1.1(b), an employer may:

(b) Clause A.1.1(a) does not permit an employer to require an employee to take leave for a period beyond the period of operation of Schedule I.

(c) Where an employee is placed on unpaid leave pursuant to clause A.1.1(a), the period of unpaid leave will count as service for the purposes of relevant award and NES entitlements.

I.9.5 I.2.5 Dispute resolution

Any dispute regarding the operation of 0 may be referred to the Fair Work Commission in accordance with Clause 34 – Dispute resolution.

ATTACHMENT B

MA000119  PP720589

fwc_logo

DETERMINATION

Fair Work Act 2009
s.157—FWC may vary etc. modern awards if necessary to achieve modern awards objective

Restaurant and Catering Industry Association T/A Restaurant and Catering Industry Association
(AM2020/36)

RESTAURANT INDUSTRY AWARD 2020
[MA000119]

Restaurant industry

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT

MELBOURNE, 29 JUNE 2020

Application to vary modern award to achieve the modern awards objective – Restaurant Industry Award 2020.

A. Further to the decision ([2020] FWCB 3401) issued by the Fair Work Commission on 29 June 2020, the above award is varied as follows:

1. By deleting Schedule I and inserting the following:

Schedule I—Award Flexibility During the COVID-19 Pandemic

I.1 The provisions of Schedule I are aimed at preserving the ongoing viability of businesses and preserving jobs during the COVID-19 pandemic and not to set any precedent in relation to award entitlements after its expiry date.

I.2 Schedule I operates from 1 July 2020 until 27 September 2020. The period of operation can be extended on application.

I.3 A direction under this Schedule ceases to have effect when it is withdrawn, revoked or replaced by the employer, or on 27 September 2020, whichever is earlier.

I.4 Schedule I does not apply to any employee employed by an employer that qualifies for the JobKeeper Scheme if the employee is an ‘eligible employee’ as defined in s.9 of the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020.

I.5 If an employer or employee becomes entitled to Jobkeeper payments for an employee, the terms of Schedule I will not apply in relation to that employer and that employee.

I.6 Any dispute regarding the operation of Schedule I may be referred to the Fair Work Commission in accordance with Clause 34 – Dispute resolution.

I.7 Any direction given by an employer under this Schedule is not valid unless the employee is advised in writing that the employer consents to a dispute arising from the direction being settled by the Fair Work Commission through arbitration in accordance with Clause 34 – Dispute resolution and section 739(4) of the Act.

I.8 During the operation of Schedule I, the following provisions apply:

I.8.1 Classifications and duties

(a) As directed by their employer, where necessary employees will perform any duties that are within their skill and competency regardless of their classification under clause 14—Classifications and Schedule A—Classification Structure and Definitions, provided that the duties are safe and the employee is licensed and qualified to perform them.

(b) Clause 18.8—Higher duties will apply to employees engaged on duties carrying a higher rate than their ordinary classification.

I.8.2 Hours of Work—Full-time and part-time employees

(a) Subject to clause I.8.2(c), and despite clause 9—Full-time employment and requirements for notice in clause 15.3 (Rosters), an employer may direct a full-time employee to work an average of between 22.8 and 38 ordinary hours per week. The employee will be paid on a pro-rata basis. The arrangements for working ordinary hours in clause 15—Ordinary hours of work and rostering arrangements will apply on a pro- rata basis.

(b) Subject to clause I.8.2(c), and despite clause 10.4(a) (Part-time employment), and the requirements for notice in clause 15.3 (Roster), an employer may direct a part-time employee to work an average of between 60% and 100% of their guaranteed hours per week, or an average of between 60% and 100% of the guaranteed hours per week over the roster cycle.

(c) A direction under clause I.8.2(a) or (b) may only be given if:

(d) Prior to any employer issuing any direction under clause I.8.2(a) or (b) an employer must:

(e) An employee given a direction under clause I.8.2(a) or (b) will continue to accrue annual leave and personal leave, and any other applicable accruals under this Award, based on each full-time or part-time employee’s ordinary hours of work prior to the commencement of Schedule I.

(f) If an employee given a direction under clause I.8.2(a) or (b) takes a period of paid annual leave or personal leave, the payment for that leave will be based on the full-time or part-time employee’s ordinary hours of work prior to the commencement of Schedule I.

(g) An employee given a direction under clause I.8.2(a) or (b) may make any of the following requests, and the employer must consider the request and must not unreasonably refuse the request:

I.8.3 Annual leave

(a) Subject to clause I.8.3(c) and I.8.3(f) and despite clauses 25.4, 25.5 and 25.6 (Annual leave), an employer may, subject to considering an employee’s personal circumstances, request the employee in writing to take paid annual leave.

(b) If the employer gives the employee a request to take paid annual leave, and complying with the request will not result in the employee having a balance of paid annual leave of fewer than 2 weeks, the employee must consider the request and must not unreasonably refuse the request.

(c) An employer may only make a request under clause I.8.3(a) where it is reasonable in all the circumstances.

(d) A period of leave must start before 13 September 2020 but may end after that date.

(e) An employer can only request that an employee take annual leave pursuant to this clause if the request is made for reasons attributable to the COVID-19 pandemic or Government initiatives to slow the transmission of COVID-19 and is necessary to assist the employer to avoid or minimise the loss of employment.

(f) During the period of operation of Schedule I, instead of taking paid annual leave at the rate of pay required by s.90 of the Fair Work Act 2009 (Cth), an employer and an employee may agree to the employee taking twice as much annual leave at half the rate of pay for all or part of any period of annual leave.

(g) Clause I.8.3(a) does not prevent an employer and an employee agreeing to the employee taking annual leave at any time.

2. By updating the table of contents and cross-references accordingly

B. This determination comes into operation on 1 July 2020. In accordance with s.165(3) of the Fair Work Act 2009 this determination does 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 July 2020.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

 1   [2020] FWCFB 1741

 2   [2020] FWCFB 3376

 3   Information Note – Accommodation and Food services sector at [2]

 4   Information Note at Table 5

 5   Data from Jobs and Wages are collected from administrative data while LFS data are collected through surveying individuals.

 6   [2020] FWCFB 3500 at [23]

 7   [2020] FWCFB 3500 at [35] – [37]

 8   Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [35]

 9   (2017) 265 IR 1 at [128]; Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [41]–[44]

 10   [2018] FWCFB 3500 at [21]-[24]

 11   Edwards v Giudice (1999) 94 FCR 561 at [5]; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121 at [81]-[84]; National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [56]

 12   Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [33]

 13   National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [105]-[106]

 14   See National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [109]-[110]; albeit the Court was considering a different statutory context, this observation is applicable to the Commission’s task in the Review

 15   See generally: Shop, Distributive and Allied Employees Association v National Retail Association (No.2) (2012) 205 FCR 227

 16   RCI application – Annexure B at 21, 22 and 24

 17   [2017] FWCFB 1001 at [166]