The COVID-19 pandemic continued to cause significant disruption to Australian workplaces throughout 2020–21.
The Commission, as Australia’s national workplace relations tribunal, once again played an important role in helping workplaces respond to the economic impacts of the pandemic. In addition to successfully maintaining and concluding the JobKeeper disputes jurisdiction, the Commission was able to maintain continuity of its services at all times and help employees and employers adopt flexible arrangements through modern award variations.
Award variations and long-term flexibility
Throughout the COVID-19 pandemic, the Commission has issued a number of important award variation decisions to support Australian employers and employees affected by the challenging economic conditions. As the pandemic emerged in Australia, on its own motion, a Full Bench of the Commission varied 99 modern awards to insert a new Schedule providing up to two weeks’ unpaid pandemic leave and a capacity to take annual leave at half pay for employers and employees covered by these awards. During the reporting period the operative date of these provisions was subsequently extended to 30 September 2020 in all but one of the awards and then further extended until 29 March 2021.
On 23 March 2021, the Commission issued a statement inviting interested parties wishing to extend the operation of this schedule in 74 of the modern awards to apply to the Commission. As a result, the operative date of this new schedule was extended until 31 December 2021. The operation of this schedule within a number of health sector awards was also extended to operate until the end of December 2021.
As the economic and social effects of the pandemic continue to be felt, there will be a need for flexible work arrangements to assist employers and employees in adapting to the changed conditions and to support recovery. To facilitate further workplace flexibility, Commission staff prepared a model Flexibility Schedule for possible inclusion in appropriate modern awards. The draft award Flexibility Schedule was released by the President in a statement on 31 August 2020.
On 9 December 2020, the then Attorney General and Minister for Industrial Relations, the Hon Christian Porter MP, wrote to the President of the Commission to express the view that ‘it would be in Australia’s economic best interest for the Fair Work Commission to use its powers under s.157(3)(a) of the Fair Work Act to undertake a process to ensure several priority modern awards in sectors hardest hit by the pandemic be amended’.
The Commission subsequently commenced a process on its own motion to consider the inclusion of loaded rates and exemption rates clauses in the awards identified by the Minister as the key awards in the industry sectors most affected: General Retail Industry Award 2020, Hospitality Industry (General) Award 2020, Restaurant Industry Award 2020 and Registered and Licensed Clubs Award 2020. The Commission convened conferences with interested parties in December 2020 and February 2021.
Applications were received to vary the General Retail Industry Award 2020 to insert award flexibility for part-time employees. In March 2021, a Full Bench issued a decision which expressed the view that part-time employment provisions within the award were uncertain and variation was required to resolve this uncertainty. On 28 June 2021, the Full Bench issued a decision to vary this award to clarify the part-time provisions.
The Commission received an application to vary the Restaurant Industry Award 2020 to insert a new schedule to allow flexibility for COVID-19 pandemic recovery within the restaurant and catering industry. Having held several conferences with interested parties, on 3 June 2021 a Full Bench issued a statement with the provisional view that this award should be amended and the new schedule should operate for an initial period of 12 months and then be subject to a review. The Full Bench called for submissions, with the matter to be determined on the papers. Matters affecting other industries and sectors were ongoing at the end of the reporting period.
The Commission maintained a high standard of service delivery in 2020–21 through a continued focus on digital delivery services. The Commission used remote hearing technology to conduct 69 per cent of hearings and conferences via telephone or video-conference in the reporting period. Consistent with past practice, the Commission’s specialist staff conciliators conducted the vast majority of unfair dismissal and general protections dismissal conciliations via telephone.
In 2019–20 the Commission transitioned the majority of its Members and staff to home-based work arrangements. In 2020–21, Members and staff adopted a mix of home- and office-based work, depending on their location and taking into account their personal needs and those of the Commission and our clients.
The number of applications to the Commission stabilised in 2020–21, following the very high volumes seen in 2019–20. However, the Commission continues to monitor application levels and external factors closely to ensure it is able to quickly respond to changes in its operating environment associated with the pandemic.
Flexible, responsive services
The Commission was able to re-introduce face-to-face hearings where permitted by Government guidelines. Our facilities were adapted to provide a safe environment for Members, staff and visitors. To ensure access to justice and continuing adaptability to the everchanging COVID-19 pandemic, remote hearings remained in use alongside the more traditional in-person hearings.
The Commission continued to implement protocols consistent with Government advice to ensure a safe environment for our clients, staff and Members. The Commission continued to monitor the COVID-19 public health orders, and where recommended public counters were closed for periods of time, and at times of high risk and lockdowns, on site hearings were held only under exceptional circumstances.
The Commission kept clients informed of any changes to operations through a dedicated COVID-19 webpage.