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

Application to vary the Clerks – Private Sector Award 2020
(AM2020/95)

Joint 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] On 28 March 2020 we issued a Decision 1 granting a joint application filed by Ai Group and ACCI, to insert a new schedule, ‘Schedule I-Award flexibility during the COVID-19 pandemic’, into the Clerks – Private Sector Award 2020 (the Clerks Award). The new schedule came into operation on 28 March 2020 and was to cease to operate on 30 June 2020, unless extended. That initial joint application was supported by the Australian Council of Trade Unions (ACTU) and the Australian Services Union (ASU).

[2] A subsequent application filed by Ai Group and ACCI in June 2020 to vary the terms of Schedule I and extend its period of operation (the First Extension Application) was the subject of a hearing on 30 June 2020. At the conclusion of the hearing we decided to grant the application and vary the award in the terms proposed in the revised draft determination. We published reasons for our decision on 9 July 2020. 2

[3] On Thursday 24 September 2020, Ai Group and ACCI (the Applicants) filed a joint application to extend the operation of Schedule I (the Second Extension Application.) If granted, the proposed variation would result in the extension of the period of operation of Schedule I beyond 30 September 2020 to 29 March 2021. The ASU opposed the extension of Schedule I to 29 March 2021.

[4] The ASU filed a submission on 29 September 2020 in which it opposed the extension of Schedule I to 29 March 2021, but went on to advance a ‘compromise solution’ submitting that:

‘… if the Commission is of the mind to grant the employer application then the ASU would suggest a sensible compromise given the rapidly changing circumstances. We suggest the Commission extend the Schedule to November 30th 2020 and not March 29th 2021.’  3

[5] Following the filing of the ASU’s submission, further discussions took place between the Applicants and the ASU. By email on 29 September, we were informed that the parties had reached a ‘partial consensus’ as to the extension of Schedule I:

‘The ASU, ACTU, Ai Group and ACCI agree that the schedule should be extended until 30 November 2020. Ai Group and ACCI will accordingly shortly file an amended draft determination reflecting this position.

There is however is a single point of contention between the parties as follows: Whether, in the context of any extension of the schedule, the spread of ordinary hours that may be worked under clause I.2.1 of the schedule should be between 6am and 9pm or 6am and 10pm (Monday to Friday).

The ACTU and ASU contend that if the schedule is to be extended the reference to 10pm in cl. I.2.1 should be amended to say 9pm. Ai Group and ACCI maintain the view that the schedule should continue to permit the working ordinary hours until 10pm.

The parties agree that this difference of views as to the content of cl. I.2.1 should be the only matter contested between them in the hearing tomorrow.’

[6] The Applicants filed an amended draft variation determination late on Tuesday 29 September 2020. The amended draft variation determination extends the operation of Schedule I until 30 November 2020.

[7] This matter was the subject of a hearing at 10am today. We have decided to extend the operation of Schedule I until 30 November 2020. We do not propose to vary clause I.2.1 in the manner proposed by the ASU and ACTU. A variation determination giving effect to our decision is attached. We will publish our reasons later.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR723217>

Attachment – variation determination

MA000002  PR723218

DETERMINATION

Fair Work Act 2009
s.157—Variation of a modern award to achieve the modern awards objective

Australian Industry Group and Australian Chamber of Commerce and Industry
(AM2020/95)

CLERKS—PRIVATE SECTOR AWARD 2020
[MA000002]

Application to vary the Clerks—Private Sector Award 2020 – Schedule I – Award Flexibility During the COVID-19 Pandemic

A. Further to the Statement [[2020] FWCFB 5246] issued by the Full Bench on 30 September 2020, the above award is varied as follows:

1. By deleting the words “30 September 2020” appearing in clause I.1.1 and inserting “30 November 2020”.

2. By deleting the words “30 September 2020” appearing in clause I.2.3(e) and inserting “30 November 2020”.

B. This determination comes into operation on 30 September 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 30 September 2020.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

 1   [2020] FWCFB 1690.

 2   [2020] FWCFB 3443

 3   Ibid at [29] and [32]