Fair Work Commission responds to COVID-19 Pandemic: Award Variations

In a statement released by the Fair Work Commission Full Bench (FWCFB) on 1 April 2020 they provided their provisional view on temporary changes to be made to 103 Modern Awards in response to the current COVID-19 Pandemic. These changes are aimed at providing more flexibility for employers and protection for their employees during these unprecedented times. The proposed changed include the ability to access unpaid leave, which the FWCFB refers to as “unpaid pandemic leave”, and to access annual leave entitlements in a flexible fashion, specifically the ability to take twice the amount of accrued annual leave at half the pay to assist in getting through periods where work is not available.

The FWCFB stated there was a ‘regulatory gap’ in the current award safety net for employees who are required to self-isolate due to COVID-19. The temporary absence provisions, found under section 352 of the Fair Work Act 2009 (the Act), only protect an employee from dismissal on the grounds of illness or injury. Under the current provisions a person who is self-isolating, but who is not ill or injured, is not protected by section 352 during a period of leave they are needing to take due to government directives, and theoretically might be terminated by an employer for that absence.

Subsequently, the FWCFB released a decision on 8 April 2020 confirming variations to 99 Modern Awards to fill the ‘regulatory gap’. Some industries, including construction, maritime and mining and resource have not been varied at this stage. However, the FWCFB has stated that this is only phase 1 and in the longer-term modern awards in these industries may be varied as part of a later phase.

The variations include:

Unpaid pandemic leave

An entitlement for an employee to take up to 2 weeks’ unpaid leave if the employee is required, by government or medical authorities or acting on advice of a medical practitioner, to self-isolate or is otherwise prevented from working by measures taken by government authorities due to the COVID-19 pandemic.

Any employee will be required to provide notice to their employer as soon as practicable (which may be after the period of leave commences) and will need to provide evidence to their employer that is similar to any other period of medical leave.

Annual leave at half pay

The ability for employers and employees to agree in writing to an employee taking a period of annual leave that is twice as long, at half pay. Any agreement must be retained as an employee record.

It is important that employers are aware that any employee who is entitled to the benefit of this variation will have a workplace right under s341(1)(a) of the Act, so any adverse action taken against an employee for exercising this right, may lead to a general protections claim.

These variations will apply until 30 June 2020, but may be extended by the FWC.

A list of affected Modern Awards can be found at the end of this article.

For more information or if you would like to subscribed to our Award Updating Service, contact CCIWA’s Employee Relations Advice Centre on (08) 9365 7660 or email advice@cciwa.com.

 

Modern Awards Affected:

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 2020

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

Wool Storage, Sampling and Testing Award 2010

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