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Pandemic Leave and Changes to Modern Awards

The Fair Work Commission has the power under Section 157(3) of the Fair Work Act 2009 (Cth) to vary modern awards to achieve the awards objective.

On Thursday the 2nd of April the FWC issued a statement outlining their provisional view (subject to consultation) to make amendments to 103 modern awards during the COVID-19 pandemic.

The changes are to:

  1. Provide an entitlement to unpaid ‘pandemic leave’
  2. Provide the flexibility to take annual leave at half pay

Unpaid pandemic leave

Below is the proposed provision to be inserted into 103 modern awards.

(a) Subject to clauses X.2.1(b) and (c), any employee may 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 is otherwise prevented from working by measures taken by government or medical authorities in response to the COVID-19 pandemic in circumstances where the employee is required to work at premises operated by an employer.

(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) 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 1: A employee covered by this Award who is entitled to the benefit of clause X.2.1 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.

The proposed term seeks to strike a balance between the various interests and has been drafted so that the unpaid pandemic leave entitlement:

  • will be available in full immediately, rather than accruing progressively during a year of service;
  • will only be available until 30 June 2020 (unless extended by further variation dependant on the duration of the COVID-19 pandemic);
  • will be available to full-time, part-time and casual employees (not pro-rated); and
  • it will notbe necessary for employees to exhaust their paid leave entitlements before accessing unpaid pandemic leave.

Annual leave at half pay

The term the FWC is proposing to insert in the selected modern awards is as follows:

(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.

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 1 weeks’ leave on full pay (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. (Underlining added).

NOTE 1: A employee covered by this Award who is entitled to the benefit of clause 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.

Proposed clause X.2.2(b) is to ensure that there is a record of the agreement in order to protect the interests of both parties and to minimise the risk of subsequent disputation. We note that Regulation 3.36 (with s. 535) requires employers to keep a record of any leave taken by an employee entitled to leave and to record the balance of the employee’s entitlement to that leave from time to time.

The underlined words in the example in the proposed clause X.2.2 would only be included in those modern awards that currently contain a term providing for annual leave loading.

Time-frames

The variations proposed would operate until 30 June 2020.

The FWC have given parties until 4pm on Monday the 6th of April to respond to the provisional views. If no submissions are received opposing the provisional views, the FWC will determine the matter and make the variations without holding a hearing.

Impacted awards

The FWC have advised that the provisional changes proposed are intended to be made to the following modern awards

  • 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
  • Electrical, Electronic and Communications Contracting Award 2010
  • Electrical Power Industry Award 2020
  • Fast Food Industry Award 2010
  • Fire Fighting 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
  • Plumbing and Fire Sprinklers 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
  • Wool Storage, Sampling and Testing Award 2010

 

Further questions? 

For more information on the topic, please contact us on 1300 887 458 and speak with one of our HR Consultants. If you are interested in learning more about our HR services, including HR Outsourcing, HR Consulting, HR Advisory Services, contact us at enquiries@liquidhr.com.au.