Fair Work Commission update - award changes and pandemic leave

Wills and Estates: 03 April 2020

On 24 March 2020, a Full Bench granted an application to vary the Hospitality Award. The reasons for that decision were published on 25 March 20204 (the Hospitality Decision).

On 28 March 2020, a Full Bench granted an application to vary the Clerks-Private Sector Award and the reasons for that decision were published on 28 March 2020 5 (the Clerks-Private Sector Decision).

The Hospitality Decision varied the Hospitality Award with effect from 24 March 2020 to provide additional award flexibility during the COVID-19 pandemic in relation to:

• the range of duties employees can be required to perform;
• reduction of ordinary hours of work for full-time and part-time employees; and
• employees being directed to take annual leave, and employees by agreement taking twice the amount of annual leave at half pay.

The Clerks-Private Sector Decision varied the Clerks-Private Sector Award was varied with effect from 28 March 2020 to provide additional award flexibility during the COVID-19 pandemic in relation to:

• the range of duties employees can be required to perform;
• the minimum engagement for part-time and casual employees working from home;
• the spread of ordinary hours of work of day workers working from home;
• temporary reduction of ordinary hours by agreement;
• employees being directed to take annual leave, and employees by agreement taking up to twice the amount of annual leave at a proportionately reduced pay rate; and
• a reduced notice period for close-down.

The Commission is considering introducing pandemic leave into awards, although no final decision has been made at 2 April 2020.

As with paid personal leave, it appears that the protection against dismissal may not apply to an employee required to self-isolate because they have been exposed to someone infected with COVID-19, if the employee has not tested positive to COVID-19, is not displaying any symptoms and is not unfit for work because of personal illness.

The Commission considers that the current gaps in leave entitlements and protections against dismissal could be addressed for employees to whom awards apply, by providing an entitlement to unpaid 'pandemic leave' if employees are required to self-isolate or are otherwise prevented from attending work where they are required by their employer to attend, by measures taken by government or medical authorities in response to the COVID-19 pandemic.

As well as providing an entitlement to leave to employees who have no existing leave entitlements available to them in these circumstances, a new pandemic leave entitlement would supplement existing leave entitlements and constitute a 'workplace right' for the purposes of the general protections under the Act. The unpaid pandemic leave proposed is intended to be a short-term measure to address the 'regulatory gap' outlined above.

The proposed unpaid pandemic leave entitlement:

• will be available in full immediately, rather than accruing progressively during a year of service;
• will only be available until 30 June 2020 (unless extended by further variation dependant on the duration of the COVID-19 pandemic);
• will be available to full-time, part-time and casual employees (not pro-rated); and
• it will not be necessary for employees to exhaust their paid leave entitlements before accessing unpaid pandemic leave.

For more information please contact Stephen Curtain - 03 8600 6042 or 0417 373 545