02/04/2020

The Fair Work Commission (FWC) has announced its intention to vary 103 modern awards to insert new provisions in response to the COVID-19 pandemic. The modern awards include:

  • Banking, Finance and Insurance Award 2020
  • Children’s Services Award 2010
  • Clerks - Private Sector Award 2010
  • General Retail Industry Award 2010
  • Graphic Arts, Printing and Publishing Award 2010
  • Manufacturing and Associated Industries and Occupations Award 2010
  • Miscellaneous Award 2010
  • Social, Community, Home Care and Disability Services Industry Award 2010

Link to the announcement here.

The FWC proposes that the following changes will operate until 30 June 2020 (unless extended).

Unpaid pandemic leave:

Proposed entitlement

It is proposed that full-time, part-time and casual employees may to elect to take up to 2 weeks’ unpaid leave if the employee is:

  • required by government or medical authorities or acting on medical advice, to self-isolate; or
  • otherwise prevented from working by measures taken by government or medical authorities in response to the COVID-19 pandemic.

The unpaid pandemic leave applies if the employee is required to work at premises operated by their employer. This means, if an employee is not required to attend their employer’s premises and is able to carry out their duties in isolation (for example, by working from home), then an employee will not be eligible to receive unpaid pandemic leave.

Notice & evidence

The employee must give their employer notice of taking unpaid pandemic leave and the reason the employee requires the leave, as soon as practicable (which may be a time after the leave starts).

If required by their employer, the employee must give the employer evidence that would satisfy a reasonable person that the leave is taken for one of the reasons specified above.

Other conditions

Unpaid pandemic leave does not affect any other paid or unpaid leave entitlement of the employee and counts as service for the purposes of entitlements under the modern award and the National Employment Standards.

An employee may take unpaid pandemic leave even if their paid leave entitlements are available.

Unpaid pandemic leave is proposed to be a one-off entitlement, which means employees will only be entitled to take the leave once during a period of employment. It does not operate on a “per occasion” basis, and hence will not assist those employees compelled to self-isolate on more than one occasion.

Ability to take twice the amount of annual leave at half pay:

It is proposed that an employee and their employer may agree to the employee taking twice as much annual leave on half pay. For example, an employee takes 2 week’s annual leave but is paid for only 1 week.  One weeks’ annual leave is deducted from the employee’s leave accruals.

Any agreement to take twice as much annual leave in this way must be recorded in writing and retained as an employee record.

This provision has recently been inserted into the Hospitality Industry Award, the Clerks – Private Sector Award and the Restaurant Award. See this article.

Next steps:

  • The FWC has asked for any submissions on the proposed changes by 4pm on Monday 6 April 2020.
  • If there’s any opposition to the proposed changes, the FWC will hold a hearing if required at 2pm on Wednesday 8 April 2020 by telephone.

Assuming there is no opposition to the proposed changes, it is likely they will come into effect next week.

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