FWC to fast track COVID-19 pandemic EBA variations
The Fair Work Commission (FWC) has published a COVID-19 fact sheet outlining mechanisms available to employers in streamlining processes to vary EBA’s in order to address the impact of the COVID-19 pandemic.
FWC is currently varying Modern Awards to introduce flexibilities designed to assist employers in responding to the COVID-19 crisis. These flexibilities include reducing full and part time hours, facilitating work from home arrangements, unpaid pandemic leave and directing the taking of annual leave.
Fast tracking applications
Many of these flexibilities are not available in most EBA’s.
In order to introduce additional flexibilities or COVID-19 response strategies, an EBA may need to be varied. The time required to undertake the necessary administrative steps and obtain FWC approval to vary an EBA has previously meant that this not a viable option to address an urgent short term crisis. However, FWC has introduced mechanisms to fast track COVID-19 applications to vary EBA’s.
An employer must follow substantially the same steps in varying an EBA and making a new EBA. This includes approval by a majority of employees and employees having access to the terms of the variation for 7 days before the vote.
The Agreement as varied must also pass the Better Off Overall Test (BOOT). The BOOT is assessed against the underlying Award. It is not assessed against the current EBA. This means that employees could agree to remove or vary existing EBA provisions superior to those contained in the Award as part of a COVID-19 business continuity strategy.
If the varied EBA does not satisfy the BOOT, FWC may approve the varied EBA if exceptional circumstances are established. There is no precedent for this in varying an EBA. However, a FWC Full Bench is about to be convened to consider this issue.
It would appear likely that many employers in a range of industries devastated by the COVID-19 pandemic would satisfy the exceptional circumstances test.
This may provide a significant lifeline to these organisations and their employees.
Considering a variation to your existing EBA?
If you are considering a variation to your existing EBA in order to better respond to the impact the COVID-19 pandemic is having on your organisation, please contact a Mapien consultant here.
One of our workplace strategists will be in touch within 24 hours.