By and -


  • The Fair Work Commission (‘FWC‘) has responded to the COVID-19 crisis by amending modern awards to increase the flexibility available to businesses.
  • Some 99 modern awards have been varied to include two weeks’ unpaid pandemic leave and additional flexibility in relation to annual leave.
  • The FWC is experiencing a significant increase in its caseload as a result of COVID-19, including unfair dismissals.

In the first of this two-part series, we examined the Federal Government’s historic JobKeeper legislation (Connolly & Flamingh, ‘COVID-19: Employment law responds’, 66 Law Society of NSW Journal, May 2020, 88-90). This month, we turn to an examination of the changes implemented or facilitated by the Fair Work Commission (‘FWC‘).

The FWC has played an active role, both proactively and reactively, in responding to the COVID-19 crisis. The demand on the FWC is such that it has requested extra resources from the Federal Government to deal with an increase in its overall caseload of 40 per cent. This increase is largely comprised of unfair dismissal claims (which increased by 60 per cent in April compared to 2019) and general protections claims (which rose by 20 per cent in April compared to 2019), as well as approximately 200 disputes lodged thus far in relation to the JobKeeper Scheme.

Variations to modern awards on application

In addition to managing the increase in disputes, the FWC has responded to the impact of the COVID-19 pandemic by expediting the approval of applications for the insertion of COVID-19 flexibility schedules into certain modern awards to manage industry-specific workforce issues. The flexibility schedules have been included in the following modern awards: the Clerks – Private Sector Award 2010 (‘Clerks Award’); Hospitality Industry (General) Award 2010 (‘Hospitality Award’); Restaurant Industry Award 2010 (‘Restaurant Award’); and the Educational Services (Schools) General Staff Award 2010 (‘Education Award’).

The President of FWC, Justice Ross has stated that the consultation and consent between unions and employer associations had been a ‘key consideration’ for the FWC in handling the applications to vary awards, and helped the FWC to ‘move quickly in a number of these matters’.

In addition to the above awards, there are applications pending to vary the Fast Food Industry Award 2010; Real Estate Industry Award 2010; Legal Services Award 2010; Social, Community, Home Care and Disability Services
Industry Award 2010; and Vehicle Manufacturing, Repair, Services and Retail Award 2010.

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