FWC’s Initiative to vary most Modern Awards for the COVID-19 Pandemic, welcomed.
A FWC Full Bench on 1 April 2020, has proposed a new Unpaid Pandemic Leave (UPL) entitlement to be introduced in most Modern Awards and which will operate immediately until at least 30 June 2020. Employees can take the proposed UPL for up to 2 weeks if they are required by government or medical authorities or acting on medical advice to self-isolate, or are otherwise prevented from working because of such measures.[1]
In proposing UPL, FWC considered an expert report regarding businesses adversely impacted by COVID-19 in March 2020.[2] The expert report from Professor Borland found industries most affected by decreased labour (employment) demand included Accommodation and Food services, Arts and Recreational services and Retail & Wholesale trade industries.[3] 78% of businesses reported being impacted in March 2020 and 96% expected to be impacted in the coming months.
Professor Borland’s report explained that allowing extra flexibility in employment arrangements could mean that employees were able to be retained in employment.
The Full Bench Statement follows recent variations in the Hospitality Award, Clerks – Private Sector Award and the Restaurant Award. These Awards have been recently amended to allow employers to change the range of duties employees can be required to perform; reduce ordinary hours of work or direct employees to take annual leave or at half or reduced pay.[4]
The Statement proposes that a full time, part time or casual employee can immediately take UPL (without having to accrue a period of service) if required by government or medical authorities or acting on medical advice to self-isolate, or are otherwise prevented from working by measures taken by government or medical authorities in response to the pandemic in circumstances where they are required to work at their employer’s premises provided that –
- The employee gives their employer notice for taking the leave and the reason for taking leave, as soon as practicable and
- If required by their employer, gives reasonable evidence that they are taking leave because they are required by government or medical authorities or acting on medical advice to self-isolate, or they will be prevented from working at their workplace by government/medical authorities’ measures. [5]
UPL will also not impact on other paid or unpaid leave entitlements and will count as service (i.e. employees’ service is not broken under the Award and National Employment Standards for the accrual of some other entitlements).
If the proposed leave is introduced in Awards, it will constitute a new Workplace Right under the Fair Work Act. This means that an employee proposing to take this leave whether such leave is granted, is likely to be exercising a workplace right and will likely be covered by the General Protections provisions in the Act.
Current regulatory gaps to deal with COVID-19
FWC identified the need for UPL because of “some regulatory gaps” in how employees and employers can manage COVID-19, including because –
- The National Employment Standards do not apply to casuals;
- Only limited paid personal/carers leave (which accrues at 10 days for each year of service for permanent employees) is available, or most employees may have already used their leave;
- Some employees are requiring to self-isolate and their employer might not agree to them taking time off work in order to comply with public health directions;
- Unfair Dismissal laws do not extend to every employee, who may be treated unfairly by their employer; or
- An employee taking time off or wanting to take leave, may not be protected from unlawful dismissal or general protection laws because their absence is not “temporary” (as defined by the Fair Work Act and Regulations) or they do not have a “prescribed illness” at the time of seeking to take leave.
Annual leave at half pay
The Commission has also proposed a term allowing employees to take annual leave at half or reduced pay by written agreement with their employer.
Conclusion
During these times, it is important that both employers and employees adhere to their obligations in the workplace. Further, COVID-19 should not be used as an excuse to take otherwise unlawful or unreasonable action.
If you are unsure about any action taken in your workplace, contact our office for further advice about the circumstances of your case.
[1] Fair Work Commission, Variation of Awards at initiative of the Commission [2020] FWCFB 1760, at paragraph 60.
[2] Benefit from greater flexibility in employment arrangements – a report to the Fair Work Commission, Professor Jeff Borland, Department of Economics University of Melbourne March 2020
[3] Fair Work Commission Report at paragraph 25.
[4] [2020] FWCFB 1574; [2020] FWCB 1690 and [2020] FWCFB 1741
[5] At para 59.