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The Fair Work Commission proposes unpaid pandemic leave

On 1 April 2020, the Fair Work Commission (“the FWC”), acting on its own initiative, issued a statement outlining its intention to update 103 Modern Awards.
The proposed updates would provide:

1.    An entitlement to 2 weeks unpaid pandemic leave available to full-time, part time and casual employees if required by government or medical authorities to self-isolate or if they are otherwise prevented from attending work, provided they cannot work from home. 

2.    Flexibility to take annual leave at half pay. 

The proposed variations would operate until 30 June 2020, unless further extended. 

The proposed variations aim to address a gap between government and public health directives in response to COVID-19; and the protections afforded to employees by the Fair Work Act 2009 (“the FWA”). The FWC outlined in its statement that the number of employees able to utilise paid personal leave to cover a period of self-isolation is limited because:

a)    Casual employees are not entitled to paid personal leave under the FWA; 

b)    Employees are only entitled to 10 days paid personal leave per year under the FWA and it is likely that a significant proportion of employees would have already used some of their entitlements meaning they may not have enough paid leave to cover a period of self-isolation; 

c)    Employees who have less than 12 months service with their employer would have less than 10 days paid leave; and

d)    An employee who is required to self-isolate (because, for example, they have been exposed to someone infected with COVID-19) is not necessarily unfit for work because of personal illness (as required by section 97(a) of the FWA). 

The FWC noted that because of the above issues, employees who could not reach an agreement with their employer about paid or unpaid leave in circumstances where they were required to self-isolate, were possibly forced to make a choice between contravening a public health direction and keeping their job. 

At this stage, the proposed variations are not operational. The FWC has asked for submissions in response to the proposed variations. If no submissions are received, the FWC will determine the matter without holding a hearing. If a hearing is required, it will take place today. 

If you have any questions about the proposed variations, please contact us.

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