This article is part of a regular newsletter. If you wish to receive the newsletter providing information on the latest employee relations news and trends click here and use the “Contact us” tab.

My business grows through referrals. I would appreciate it if you would pass my details on to your colleagues, clients, or associates who could benefit from my skill set. Defending/Preventing unfair dismissals, policies and procedures, contracts of employment, codes of conduct, and more…

 Introduction

Read the full decision here, and the supplementary decision (extending the award-range) here.

The COVID-19 crisis (it is now officially a crisis in Victoria) has been a feature of our population since March 2020 – going on five months! With the pandemic came mass stand downs of employees and those employees unable to access their sick leave accruals. The FWC has, at its own volition granted paid leave to aged care workers…but will it stop there?

A Full Bench of the Fair Work Commission has determined that from Wednesday 29 July 2020 health-care workers who work in residential aged care will be able to access paid leave if the purpose of the leave is a result of COVID-19 requirements.

The question is, will this paid leave extend beyond the aged care sector, given the latest Victorian developments? This has already been sought by the unions.

This leave applies to full and part-time and “regular and systematic” casual employees and will be available until, at least, 28 October 2020, but may be further extended.

The paid leave entitlement is for workers who are required by their employer or a government medical authority or on the advice of a medical practitioner to self-isolate because they display COVID-19 symptoms or have come into contact with a person suspected of having contracted COVID-19. The leave entitlement is limited to up to 2 weeks’ paid leave on each occasion of self-isolation.

The Fair Work Commission’s reasoning

The FB gave consideration to arguments put by unions (including the ACTU), employer groups, government and expert advice and concluded:

“…an employee required to self-isolate may not have access to paid personal leave because, in the case of full-time and part-time employees, they may not be unfit for work such as to qualify for such leave or may have exhausted their leave entitlement or, in the case of casual employees, they do not have an entitlement to such leave. The requirement for self-isolation is primarily to prevent the spread of infection which, in the aged care sector is especially critical because of the vulnerability of aged persons to COVID-19 fatalities. Thus, the requirement to self-isolate may be said to be in the public interest. However, absent a paid pandemic leave entitlement or access to other leave entitlements, the employee bears the cost of this. For low-paid employees, this is likely to place them in significant financial difficulty and even distress. Further, as we found in our 8 July Decision at paragraph [123], there is a real risk that employees who do not have access to leave entitlements might not report COVID-19 symptoms which might require them to self-isolate, but rather seek to attend for work out of financial need. This represents a significant risk to infection control measures. These matters weigh significantly in favour of the introduction of a paid pandemic leave entitlement”. [My emphasis].

Further adding:

“[46] The seriousness of the position in the aged care sector in Victoria is demonstrated by the measures taken by the Commonwealth and Victorian Governments in respect of that sector to provide financial support to prevent aged workers working at more than one facility to prevent chains of transmission between facilities, to ensure that aged care providers can engage and train additional staff where existing staff are unable to work because of self-isolation, and to ensure aged care providers can provide alternative accommodation so that workers who live or work in “hotspots” can continue to work”.

Does the paid pandemic leave only apply to Victoria?

No. Whilst the FWC’s decision was necessitated by the escalating number of positive cases in Victoria, it will apply to all employers and employees covered by the awards.

The employer groups argued that it was unfair to impose the paid leave on employers outside of Victoria, however the FWC found that it was logical that the paid leave will only apply to employers who have employee directed affected by the COVID-19 restrictions and so it will have minimal or no effect on other states (emphasising that the federal government is willing to provide financial assistance to business).

What health workers are entitled to the paid pandemic leave?

Full-time, part-time, and regular and systematic casual employees covered by the following awards:

  • The Aged Care Award 2010.
  • The Nurses Award 2010 and the Health Professionals and Support Services Award 2020 who are employed by residential aged care providers or are required to work in residential aged care facilities.

Does this mean casuals are entitled to paid leave?

Yes and no. As the FWC put it:

“…the entitlement will only apply to regular and systematic casual employees, and the extent to which the casual labour hire staff the subject of ACCI’s concern fall into this category is unclear. In any event, ACCI’s submission proceeds on the basis of the assertion that the new entitlement would be “unfunded and unrecoverable”. We do not necessarily accept this to be the case. We have earlier described the funding support that will be provided by the Commonwealth Government”. [My emphasis].

Form of the award variations

The decision provides a foundation for the make-up of the award so-called Schedule “Y”:

  • the leave entitlement is for workers who are required by their employer or a government medical authority or on the advice of a medical practitioner to self-isolate because they display COVID-19 symptoms or have come into contact with a person suspected of having contracted COVID-19;
  • the leave entitlement is limited to up to two weeks’ paid leave on each occasion of self-isolation;
  • workers who are able to work at home or remotely during self-isolation are not entitled to paid leave;
  • the entitlement will extend to casual employees engaged on a regular and systematic basis, and would entitle them to payment based on an average of their earnings over the previous six weeks; and
  • the entitlement will initially operate for a period of 3 months.

How will it affect awards?

The relevant awards will be amended, with Schedule “X” being slightly modified and a new Schedule “Y” being inserted. The ACTU has proposed the following:

Schedule Y – Industry Specific Measures During the COVID-19 Pandemic

Y.1 Subject to clauses Y.2.1(d) and Y.2.2(c), Schedule Y operates from [X] 2020 until 30 September. The period of operation can be extended on application.

Y.2.1 Paid pandemic leave

(a) Subject to clauses Y.2.1(c), (d), (e) and (f), an employee is entitled to take up to 2 weeks’ leave on each occasion the employee is prevented from working:

(i) because the employee is required by government or medical authorities to self isolate or quarantine;

(ii) because the employee is required by their employer to self isolate or quarantine;

(iii) because the employee is required on the advice of a medical practitioner to self isolate or quarantine because they are displaying symptoms of COVID-19 or are suspected to have come into contact with a person suspected of having contracted COVID-19;

(iv) because the employee is in isolation or quarantine while waiting for the results of a COVID-19 test; or

(v) because of measures taken by government or medical authorities in response to the COVID-19 pandemic.

(b) An employee is entitled to a paid day of leave on each occasion the employee is tested for COVID-19, save where such test is performed at the employee’s usual workplace and counted as working time.

(c) Except where Y.2.1(a)(ii) applies, the employee must give their employer notice of the taking of leave under clause Y2.1(a) and of the reason the employee requires the leave, as soon as practicable (which may be a time after the leave has started).

(d) Except where Y.2.1(a)(ii) applies, an employee who has given their employer notice of taking leave under clause Y.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 Y.2.1(a).

(e) A period of leave under clause Y.2.1(a) must start before 30 September 2020, but may end after that date.

(f) A casual employee is not entitled to leave under this clause unless engaged on a regular and systematic basis.

(g) Leave taken under clause Y.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 NES.

(h) For a full time employee, leave taken under clause Y.2.1(a) shall be paid at the employee’s base rate of pay for the employee’s ordinary hours of work in the period of leave.

(i) For a part-time employee, pay will be for either:

(i) their agreed ordinary hours of work under 10.3(c)(i); or

(ii) the average of their weekly ordinary hours of work for the previous twelve months; whichever is greater

(j) For a casual employee, pay for leave taken under clause Y.2.1(a) shall be calculated on the average weekly pay received by the employee in the previous 6 weeks, or where the employee has been employed for less than 6 weeks, for the duration of their employment.

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