Fair Work Commission initiates additional COVID-19 provisions to 99 Modern Awards

The Fair Work Commission has varied 99 Modern Awards by inserting a new Schedule – ‘Schedule X: Additional measures during the COVID-19 pandemic’.  Attachment A of the decision lists 99 Awards to be varied and a list of these Awards can be accessed here.  Schedule X provides an entitlement to unpaid pandemic leave and the ability to take twice the amount of annual leave at half pay (additional measures during the COVID-19 crisis).  These provisions are operative from 8 April 2020 until 30 June 2020 (and may be extended upon application).

Unpaid Pandemic Leave

During the period of operation of Schedule X, an employee is entitled to take up to two weeks’ unpaid leave if the employee is required by: government, medical authority or acting on advice of a medical practitioner to self-isolate which consequently prevents the employee attending work.  An entitlement to unpaid pandemic leave also includes circumstances were an employee is prevented from working due to measures taken by government or medical authorities in response to the COVID-19 pandemic.  The employer and employee may agree to the employee taking more than 2 week’s unpaid pandemic leave.

Employees must give their employer notice and reason for taking the leave as soon as practicable.  Notice may be at a time after the leave has started.   An employee may also be required by their employer to provide evidence to satisfy leave is taken for reasons consistent with the entitlement.

A period of unpaid pandemic leave must be commenced before 30 June 2020 but may end after that date.  Unpaid pandemic leave taken does not affect any other paid or unpaid leave entitlement.  Importantly, unpaid pandemic leave is counted as service for the purposes of entitlements under the applicable award or the National Employment Standards.

Annual leave at half pay

The Commission’s decision noted the Hospitality Industry (General) Award 2010, the Clerks – Private Sector Award 2010 and the Restaurant Industry Award 2010 were recently varied to include comparable annual leave at half pay provisions to address the COVID-19 pandemic.  The remainder of the Modern Awards listed in Attachment A were varied to insert the annual leave provision.

Annual leave at half pay allows an employee, with the agreement of their employer, to take twice as much annual leave on half pay. For example, instead of an employee taking one week on full pay, the employee may take two weeks’ annual leave on half pay.  The employee’s pay for the two weeks’ leave is the same as the pay the employee would have been entitled to for one week’s leave on full pay (where one week’s full pay includes leave loading under the Annual Leave clause of the applicable Award).

A period of annual leave at half pay must start before 30 June 2020 but may end after that date.  An agreement to pay annual leave at half pay must be recorded in writing and retained as an employee record.

Workplace Right

Employers should note, unpaid pandemic leave and annual leave at half pay under the varied Awards are workplace rights.  An employer must not take adverse action against an employee because of an employee’s workplace right – care should then be taken in any discussion and handling of the use of these provisions and legal advice should be considered.

Employers are strongly encouraged to review the 99 varied Awards to ascertain whether the modern award relevant to their workplace now contain operative additional measures during the COVID-19 pandemic.

As always the lawyers at Aitken Legal remain available to discuss any aspect of these changes.