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