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COVID-19: People: Temporary amendments to Modern Awards concerning leave entitlements (Australia)

03 April 2020 | Australia
Legal Briefings – By Drew Pearson, Lucy Boyd and Greta Morand

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The Fair Work Commission (FWC) announced that it proposes to temporarily vary 103 modern awards to:

  1. provide all employees (including full-time, part-time and casual employees) with a new entitlement of up to 2 weeks’ unpaid pandemic leave; and
  2. provide for employees, by agreement with their employer, to take twice as much annual leave at half the rate of pay.

A full list of the impacted modern awards can be found on page 28 of the FWC’s Statement published today. Notably, the change does not include modern awards in the construction, maritime and mining and resource sectors.

The proposed variations are made in response to the COVID-19 pandemic. The FWC Statement confirms that the introduction of unpaid pandemic leave is designed to provide protection from dismissal for employees who are required to self-isolate but ineligible for personal leave.  The annual leave variation is intended to provide employers and employees with additional flexibility amid the COVID-19 crisis.   

The FWC has confirmed that both proposed entitlements will be ‘workplace rights’ for the purpose of the general protections provisions in the Fair Work Act 2009 (Cth). The varied terms are proposed to apply until 30 June 2020 (unless extended by further variation dependant on the duration of the COVID-19 pandemic). 

1. Unpaid pandemic leave

The proposed variation would entitle employees to 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.”

Notably, the entitlement to unpaid pandemic leave:

  • will be available in full immediately;
  • will be available to full-time, part-time and casual employees (not pro-rated);
  • will not be available on a “per occasion” basis; (Therefore an employee will not be able to access an additional 2 week entitlement if they are required to isolate on more than one occasion).

The FWC statement confirms it will not be necessary for employees to exhaust any paid leave entitlements before accessing unpaid pandemic leave.

It is unclear whether the JobKeeper payment will be available to employees on unpaid pandemic leave.  At paragraph [115], the FWC asks the Commonwealth to clarify whether the proposed JobKeeper payment will be available in these circumstances.  The FWC notes that there would be adverse public policy consequences if the JobKeeper payment was not available in these circumstances.

2. Annual leave at half pay

In line with the recent amendments to the Hospitality Award, the Clerks – Private Sector Award and the Restaurant Award, the proposed variation will also provide that an employer and employee may agree that an employee can take up to twice as much annual leave at half the rate of pay.   Any agreement to this effect must be recorded in writing and retained as an employee record.

For employees covered by a modern award that includes an annual leave loading, the annual leave loading will also apply to leave at half pay.

Next steps

The matter is being expedited and the FWC is accepting written submissions until 4pm on Monday 6 April 2020.

The varied terms are proposed to apply until 30 June 2020 (unless extended by further variation dependant on the duration of the COVID-19 pandemic).

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