Published 16 April 2020
On 1 April 2020, the Fair Work Commission (the FWC) issued a Statement outlining its intention to update 103 awards during the coronavirus pandemic. On 8 April 2020, the FWC made determinations varying 99 awards (listed at the end of this newsletter). The determinations inserted a temporary new schedule into these awards providing employees with:
- 2 weeks of unpaid pandemic leave; and
- the ability to take twice as much annual leave at half their normal pay if their employer agrees.
The new schedule inserted as Schedule X – Additional Measures During the COVID-19 Pandemic will apply from 8 April 2020 until 30 June 2020, and can be extended by application to the FWC.
Unpaid Pandemic Leave
Clause X.2.1 provides that employees (including full-time, part-time and casual) are entitled to take up to 2 weeks’ unpaid leave if:
- they are required by government or medical authorities or on the advice of a medical practitioner to self-isolate and are consequently prevented from working:
- for example, if a person has been diagnosed with COVID-19 and does not require hospitalisation but is required to self-isolate; or
- if they are prevented from working by measures taken by the government or medical authorities in response to the COVID-19 pandemic:
- for example, if a person is required to quarantine after travelling overseas.
The employee must give notice of the taking of the unpaid pandemic leave to their employer, with the reason why the employee is taking the leave, as soon as practicable. The employer can require the employee to give evidence of the reason why the employee took the leave.
Unpaid pandemic leave does not affect any other paid or unpaid leave entitlements of the employee. Therefore, employees that are required to self-isolate may be able to access paid personal/carer’s leave under the National Employment Standards (the NES). However, employees do not have to use all their paid leave entitlements before accessing Unpaid pandemic leave.
Annual Leave at Half Pay
Under clause X.2.2, an employee and their employer can agree in writing to the employee taking twice as much leave at half pay. The written agreement must be retained as an employee record.
For example, the employee and their employer can agree to the employee taking two weeks’ annual leave at half pay, instead of one week’s annual leave at full pay.
Requirements
A period of leave taken by application of clause X.2.1 or X.2.2 must start before 30 June 2020, but may end after that date.
Employees who are entitled to the benefit of clause X.2.1 or X.2.2 have a workplace right under section 341(1)(a) of the Fair Work Act 2009 (Cth) (the FW Act).
Next Steps
The FWC emphasised that these variations were made on the FWC’s own initiative pursuant to section 157(3) of the FW Act. These variations do not prevent other variation applications being made to vary modern awards to provide additional measures during the COVID-19 pandemic.
The FWC recently varied the following awards to provide flexibility during the COVID-19 pandemic:
- Hospitality Industry (General) Award 2010;
- Clerks — Private Sector Award 2010; and
- Restaurant Industry Award 2010.
You can access our COVID-19 Update: Variation of the Clerks – Private Sector Award 2010 for a detailed note on the changes to the Clerks – Private Sector Award 2010.
The FWC is still considering an ACTU push for health workers to have access to paid leave on multiple occasions if they are required to self-isolate due to the COVID-19 pandemic.
Awards Varied by the Insertion of Schedule X:
- Aboriginal Community Controlled Health Services Award 2010;
- Aged Care Award 2010;
- Air Pilots Award 2010;
- Aircraft Cabin Crew Award 2010;
- Airline Operations-Ground Staff Award 2010;
- Airport Employees Award 2010;
- Alpine Resorts Award 2010;
- Aluminium Industry Award 2020;
- Ambulance and Patient Transport Industry Award 2020;
- Amusement, Events and Recreation Award 2010;
- Animal Care and Veterinary Services Award 2020;
- Aquaculture Industry Award 2020;
- Architects Award 2010;
- Asphalt Industry Award 2010;
- Banking, Finance and Insurance Award 2020;
- Book Industry Award 2020;
- Broadcasting, Recorded Entertainment and Cinemas Award 2010;
- Business Equipment Award 2010;
- Car Parking Award 2020;
- Cement, Lime and Quarrying Award 2010;
- Cemetery Industry Award 2020;
- Children’s Services Award 2010;
- Cleaning Services Award 2010;
- Clerks – Private Sector Award 2010;
- Commercial Sales Award 2010;
- Concrete Products Award 2010;
- Contract Call Centres Award 2010;
- Corrections and Detention (Private Sector) Award 2020;
- Cotton Ginning Award 2020;
- Dry Cleaning and Laundry Industry Award 2010;
- Educational Services (Post-Secondary Education) Award 2010;
- Educational Services (Schools) General Staff Award 2010;
- Educational Services (Teachers) Award 2010;
- Fast Food Industry Award 2010;
- Fitness Industry Award 2010;
- Food, Beverage and Tobacco Manufacturing Award 2010;
- Funeral Industry Award 2010;
- Gardening and Landscaping Services Award 2020;
- General Retail Industry Award 2010;
- Graphic Arts, Printing and Publishing Award 2010;
- Hair and Beauty Industry Award 2010;
- Health Professionals and Support Services Award 2010;
- Higher Education Industry-Academic Staff-Award 2010;
- Higher Education Industry-General Staff-Award 2010;
- Horse and Greyhound Training Award 2010;
- Horticulture Award 2010;
- Hospitality Industry (General) Award 2010;
- Journalists Published Media Award 2010;
- Labour Market Assistance Industry Award 2010;
- Legal Services Award 2020;
- Live Performance Award 2010;
- Local Government Industry Award 2010;
- Mannequins and Models Award 2010;
- Manufacturing and Associated Industries and Occupations Award 2010;
- Marine Tourism and Charter Vessels Award 2010;
- Market and Social Research Award 2020;
- Meat Industry Award 2010;
- Medical Practitioners Award 2020;
- Miscellaneous Award 2010;
- Nursery Award 2020;
- Nurses Award 2010;
- Passenger Vehicle Transportation Award 2010;
- Pastoral Award 2010;
- Pest Control Industry Award 2010;
- Pharmaceutical Industry Award 2010;
- Pharmacy Industry Award 2010;
- Poultry Processing Award 2010;
- Premixed Concrete Award 2020;
- Professional Diving Industry (Recreational) Award 2010;
- Professional Employees Award 2010;
- Racing Clubs Events Award 2010;
- Racing Industry Ground Maintenance Award 2020;
- Rail Industry Award 2010;
- Real Estate Industry Award 2020;
- Registered and Licensed Clubs Award 2010;
- Restaurant Industry Award 2010;
- Road Transport (Long Distance Operations) Award 2010;
- Road Transport and Distribution Award 2010;
- Salt Industry Award 2010;
- Seafood Processing Award 2020;
- Security Services Industry Award 2010;
- Silviculture Award 2020;
- Social, Community, Home Care and Disability Services Industry Award 2010;
- Sporting Organisations Award 2020;
- State Government Agencies Award 2020;
- Storage Services and Wholesale Award 2010;
- Sugar Industry Award 2010;
- Supported Employment Services Award 2010;
- Surveying Award 2020;
- Telecommunications Services Award 2010;
- Textile, Clothing, Footwear and Associated Industries Award 2010;
- Timber Industry Award 2010;
- Transport (Cash in Transit) Award 2010;
- Travelling Shows Award 2020;
- Vehicle Manufacturing, Repair, Services and Retail Award 2010;
- Waste Management Award 2010;
- Water Industry Award 2020;
- Wine Industry Award 2010; and
- Wool Storage, Sampling and Testing Award 2010.
This content is general in nature and provides a summary of the issues covered. It is not intended to be, nor should it be relied upon, as legal or professional advice for specific employment situations. Olexo Workplace Law recommends that specialist legal advice should be sought about specific legal issues.
