The Fair Work Commission has revisited its previous decision not to grant paid pandemic leave for health services awards due to ‘recent developments in the progress of the COVID-19 pandemic, particularly in Victoria’.  The Commission has now decided there is justification for at least three health services awards to be varied, by inserting a Schedule Y which provides for temporary paid pandemic leave.

Schedule Y takes effect from the start of an employee’s first full pay period commencing on or after 29 July 2020 and operates until 29 October 2020 for employees who are covered by the:

• Aged Care Award 2010
• Health Professionals and Support Services Award 2020
• Nurses Award 2010

The paid pandemic leave entitlement is available for employees engaged in the aged care industry.

Paid Pandemic Leave Entitlement

Schedule Y provides that an employee engaged in the aged care industry is entitled to take up to 2 weeks’ paid pandemic leave on each occasion the employee is prevented from working (including working from home) because the employee is required by:

• government or medical authorities to self-isolate or quarantine;
• their employer to self-isolate or quarantine; and
• on the advice of a medical practitioner to self-isolate or quarantine because they are displaying symptoms of COVID-19 or are suspected of coming into contact with a person suspected of having contracted COVID-19.

An employee will also be entitled to paid pandemic leave because:

• the employee is in isolation or quarantine while waiting for the results of a COVID-19 test; or
• measures taken by government or medical authorities in response to the COVID-19 pandemic.

Exclusions from Paid Pandemic Leave

An employee will not be entitled to paid pandemic leave where the:

• employee fails to give their employer notice of taking leave (including reason) as soon as practicable;
• casual employee is not engaged on a regular and systematic basis;
• employee could instead take paid personal/carer’s leave;
• employee becomes entitled to workers compensation benefits due to contracting COVID-19;
• employee does not agree to undertake a COVID-19 test at the earliest opportunity; or
• employee did not start the leave before 29 October 2020.

Payment for Paid Pandemic Leave

A full-time employee will be paid:

• their base rate for ordinary hours of work in the period of leave.

A part-time employee will be paid the greater of:

• their agreed ordinary hours of work; or
• an average of their weekly ordinary hours of work (previous six weeks).

A casual (regular and systematic) employee will be paid:

• an average weekly pay (previous six weeks or if less than six-week, duration of employment).

It is to be noted that the Commission has not defined ‘regular and systematic’ for the purposes of these paid pandemic leave provisions.  This is an area that each employer will need to assess carefully and take advice on.

The Commission granted the entitlement to paid pandemic leave despite strong opposition from employer peak bodies.  Employer bodies argued the entitlement was unnecessary as the COVID-19 outbreak is generally confined to Victoria where the Victorian Government is already providing financial assistance.

The Commission in reaching its decision considered employers not subject to the current outbreak, that the entitlement is “likely to have little if any operative effect”.  However, the Commission also warn that “it cannot be assumed that the current outbreak will remain confined to Victoria”.

Paid pandemic leave is a workplace right.  Employers are reminded as is the case with other workplace entitlements, an employer cannot take adverse action against an employee because the employee has a workplace right, which includes exercising or proposing to exercise a workplace right.

Aitken Legal suggests for employers in the aged care industry where paid pandemic leave is now an entitlement, that they pro-actively update their HR and payroll processes as well as budget accordingly.

Aitken Legal also recommends employers with employees covered by health services awards vigilantly monitor their awards as the Commission has indicated these provisions may need adjustment and it is “possible that future events may require the consideration of the extension of the entitlement to other awards”.