Last night the Fair Work Commission varied 99 modern awards (full list see Attachment A) to insert a new Schedule – ‘Additional measures during the COVID-19 pandemic’.
This provides an entitlement to unpaid ‘pandemic leave’ and the flexibility to take twice as much annual leave at half pay.
In simple terms, an employee is now entitled to take up to two weeks’ unpaid leave if they are 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.
As we had previously advised in our COVID-19 FAQs, employees in this situation are not entitled to personal leave under the National Employment Standards as they are not ill or injured.
The FWC understood and accepted this but wanted to ensure that employees could access unpaid leave in this situation as of right rather than simply leave it to the employers discretion.
This new provision should cause little concern as it reflects what employers have been doing to date and now formalises the process for accessing unpaid leave which we anticipate will largely concern self-isolation.
Some important things to note are:
Separately the awards were also varied to allow an employee to take double annual leave at half pay. This arrangement was put into a limited number of modern awards last week.
ABLA was pleased to act for the Australian Chamber who were the lead employer peak council in the matter. If you need any assistance actioning these amendments within your business, please get in touch with one of the team.
Following you will find the full 99 awards that have been amended and for your reference, the 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:
(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.
(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:
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.
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