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COVID-19: The Fair Work Commission Responds to COVID-19
With comparable speed to that with which the COVID-19 pandemic and government restriction have impacted businesses across Australia, the Fair Work Commission has implemented a range of measures aimed at assisting workplaces manage and adapt to the rapidly changing environment. That the FWC responds to COVID-19 is testament to the impact the pandemic has on Australian workplaces.
On 8 May 2020, the President of the Fair Work Commission released a President’s Statement in respect of the Fair Work Commission’s Coronavirus response. The following provides a brief summary of several key aspects of the President’s Statement.
JobKeeper Dispute Jurisdiction
As part of the amendments to the Fair Work Act, the Commission was given jurisdiction to deal with JobKeeper disputes. In recognition of the importance of JobKeeper disputes being resolved in a timely manager, the Commission has implemented timeliness benchmarks for the JobKeeper dispute jurisdiction which aim to ensure:
- The first conference or hearing is held within 48 hours of a JobKeeper dispute being lodged;
- Wherever possible, judgments will be given ex tempore (verbally), with reserved decisions being issued within 48 hours of hearing;
- 90% of all cased to be resolved within 4 days, and 100% within 14 days.
Initial indications are that a significant number of dispute applications have been made, with the majority having been withdrawn or resolved promptly.
On 31 March 2020, the Commission made a small number of specific Award variations in response to applications it received. In addition to these variations, on 8 April 2020 and on its own motion, the Commission made amendments to 99 modern awards. These amendments include a range of short-term flexibilities and measures made available to employers to assist with their workforce management up to 30 June 2020. These measures include:
- Provision of up to 2 weeks’ unpaid pandemic leave;
- Capacity for an employer and employee to take annual leave at half pay (thereby doubling the period).
A number of amendments have also been made to specific awards, including: to increase flexibility for employers to require employees to take annual leave; to agree to reductions in hours; to facilitate close downs; and to facilitate working from home arrangements. Employers are recommended to check their applicable awards to assess what flexibilities may currently be available for their workplace.
Variations to Enterprise Agreements
As the FWC responds to COVID-19, the Commission has published additional information to assist parties to Enterprise Agreements navigate the process for agreeing variations at this time. The Commission has also established a dedicated process for the making and processing of urgent COVID-19 applications. These applications are given priority by the Commission.
The Commission has extended its existing “New Approaches” program to as a means of offering further assistance to parties when navigating and negotiating significant and urgent workplace changes.
Understand your options
COVID-19 and the restrictions which have been imposed by governments to manage the spread of the virus have, and continue, to cause unprecedented challenges for most employers. For most there are now a range of measures which can be considered as part of your short and medium-term business planning. However, like any workplace change success is often determined by not only the legal landscape, but also by the extent to which appropriate consideration is given to the remaining sectors of People+Culture Strategies’ People Management Quadrants.
Read the statement at https://www.fwc.gov.au/documents/documents/media/releases/media-release-23-march-2020.pdf
Other relevant resources
9 April 2020
COVID-19 Crisis Webinar Series for Employers: "JobKeeper and Other Critical Business Developments"
23 April 2020
COVID-19 Crisis Webinar Series for Employers: "Performance Managing through the Pandemic"
2 April 2020