Fair Work Commission Introduces COVID-19 Leave

In a rare exercise of its powers, under section 157(3) of the Fair Work Act 2009 (Cth) (“the Act”), the Fair Work Commission (Commission) has introduced pandemic leave as a temporary measure to help businesses and workers cope with the current crisis. This new measure has been inserted into a total of 99 Modern Awards, and it is in addition to the other temporary measures that have already been introduced by the Commission for the Hospitality Industry (General) Award 2010, the Clerks Private Sector Award 2010 and the Restaurant Industry Award 2010. All of these new measures will operate until 30 June 2020. However, the Commission does have the power to extend this date if the business community continues to experience the adverse effects of the current crisis.

The temporary measures – which are contained in a new schedule (Schedule X – Additional measures during the COVID-19 pandemic) and set out below – provide the ability for all employees, including casual employees, to access up to 2 weeks unpaid pandemic leave. The Commission’s intention is to offer greater flexibility for employers to manage employee workloads while they face unprecedented circumstances due to the COVID -19 pandemic. To check whether this impacts your modern award, please review appendix 2.

In their determination, the Commission explained that this temporary measure was required because current personal (sick) leave entitlements were not an adequate response to the current circumstances presented by COVID -19. The reasons provided by the Commission were:

  • Casual employees do not have an entitlement to personal (sick) leave;
  • Permanent employees are only provided 10 days of paid personal leave per year;
  • Paid personal (sick) leave accrues progressively over the course of a year (such that some employees such as new employees will have limited personal leave);
  • Paid personal (sick) leave is taken “because of personal illness”; which does not adequately cover circumstances where a person will be required to self-isolate for a 14-day period as a result of coming in to contact with someone who has contracted the virus.

Pandemic leave – available to all classifications of employees, including casual employees – is separate from any pre-existing entitlement to leave which an employee may have during the period of this temporary measure.

An employee will have an entitlement to pandemic leave where they are required to self-isolate:

  1. as a result of contracting COVID -19; or
  2. coming in to contact with a person who has contracted COVID -19.

Other requirements for an employee to be able to access pandemic leave are:

  • the employee provides notice of the need to take pandemic leave to their employer; and
  • the employee provides suitable evidence demonstrating the reason that the employee needs to take pandemic leave.                

Further flexibility provided under this new measure is the ability for an employer and an employee to agree to take pandemic leave at the same time as annual leave enabling a period of leave which is at half pay.

The Commission may make further temporary changes to the current workplace system in order to respond to the rapidly evolving COVID-19 situation. DW Fox Tucker will keep you informed as these changes occur. In the meantime, if you would like to discuss this recent temporary change to the Modern Awards, please contact our Employment Law expert Ben Duggan.


Schedule X – Additional measures during the COVID-19 pandemic

X.1 Subject to clauses X.2.1.(d) and X.2.2(c), Schedule X operates from 8 April 2020 until 30 June 2020. The period of operation can be extended on application.
X.2 During the operation of Schedule X, the following provisions apply:

X.2.1 Unpaid pandemic leave
(a) Subject to clauses X.2.1(b) (c) and (d), any employee is entitled to take up to 2 weeks’ unpaid leave if the employee is required, by government or medical authorities or acting on the advice of a medical practitioner, to self-isolate and is consequently prevented from working, or is otherwise prevented from working by measures taken by government or medical authorities in response to the COVID-19 pandemic.
(b) The employee must give their employer notice of the taking of leave under clause X.2.1(a) and of the reason the employee requires the leave, as soon as practicable (which may be a time after the leave has started).
(c) An employee who has given their employer notice of taking leave under clause X.2.1(a) must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the leave is taken for a reason given in clause X.2.1(a).
(d) A period of leave under clause X.2.1 (a) must start before 30 June 2020, but may end after that date.
(e) Leave taken under clause X.2.1(a) does not affect any other paid or unpaid leave entitlement of the employee and counts as service for the purposes of entitlements under this Award and the National Employment Standards.
NOTE: The employer and employee may agree that the employee may take more than 2 weeks’ unpaid pandemic leave.

X.2.2 Annual leave at half pay
(a) Instead of an employee taking paid annual leave on full pay, the employee and their employer may agree to the employee taking twice as much leave on half pay.
(b) Any agreement to take twice as much annual leave at half pay must be recorded in writing and retained as an employee record.
(c) A period of leave under clause X.2.2(a) must start before 30 June 2020, but may end after that date.

EXAMPLE: Instead of an employee taking one week’s annual leave on full pay, the employee and their employer may agree to the employee taking 2 weeks’ annual leave on half pay. In this example:

  • the employee’s full pay for the 2 weeks’ leave is the same as the pay the employee would have been entitled to for one1 week’s’ leave on full pay (where one week’s full pay includes including leave loading under the Annual Leave clause of this award); and
  • one week of leave is deducted from the employee’s annual leave accrual.

NOTE 1: A employee covered by this Award who is entitled to the benefit of clause X.2.1 or X.2.2 has a workplace right under section 341(1)(a) of the Act.

NOTE 2: Under section 340(1) of the Act, an employer must not take adverse action against an employee because the employee has a workplace right, has or has not exercised a workplace right, or proposes or does not propose to exercise a workplace right, or to prevent the employee exercising a workplace right. Under section 342(1) of the Act, an employer takes adverse action against an employee if the employer dismisses the employee, injures the employee in his or her employment, alters the position of the employee to the employee’s prejudice, or discriminates between the employee and other employees of the employer.

NOTE 3: Under section 343(1) of the Act, a person must not organise or take, or threaten to organise or take, action against another person with intent to coerce the person to exercise or not exercise, or propose to exercise or not exercise, a workplace right, or to exercise or propose to exercise a workplace right in a particular way.

**To See Appendix 2, ‘Modern Awards to be varied to insert Schedule’ please click here **

For more information, please contact:
Ben Duggan

Ben Duggan
Director
p.  +61 8 8124 1881
e.  Email me

This communication provides general information which is current as at the time of production. The information contained in this communication does not constitute advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. Should you wish to discuss any matter raised in this alert, or what it means for you, your business or your clients' businesses, please feel free to contact us.

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