FWC approves unpaid pandemic leave & annual leave at half pay for Modern Awards

On 1 April, a Full Bench of the Fair Work Commission (FWC) issued a statement identifying its intent to vary over 100 Modern Awards on its own initiative. The provisional view of the Full Bench was that, in the wake of the COVID-19 pandemic, the Modern Awards should be varied as a matter of urgency to provide a majority of award-covered employees with access to two weeks unpaid “pandemic leave” and to permit annual leave to be taken at half-pay, by mutual agreement.

On 8 April, the FWC issued a decision confirming there had been no objections to its provisional view and that approximately 100 Modern Awards are set to be varied to incorporate the unpaid leave and annual leave at half pay with immediate effect. Awards applicable/connected to the construction, maritime and mining sectors are excluded from the first round of variations but will be considered for variation later in April.

The two weeks of unpaid pandemic leave will operate in a similar manner to unpaid family and domestic violence leave in that it will be available immediately (rather than accruing progressively over a year of service) and be accessible in full to full-time, part-time and casual workers (not pro-rated). The unpaid leave will be available until 30 June, unless extended on application to the FWC.

The Full Bench rationalised that providing access to two weeks unpaid pandemic leave would enable individuals who should self-isolate for 14 days in compliance with Government guidelines or medical advice to feel that they could do so, without jeopardising their employment. For employees entitled to utilise unpaid pandemic leave, exercising their right to access two weeks unpaid leave for these purposes (self-isolation) would constitute a workplace right for which a worker could not be terminated, nor could they be required by their employer to report for work if Government guidelines or medical advice (requiring them to self-isolate) prevented them from doing so.

Unpaid pandemic leave will count as service (meaning permanent employees will continue to accrue leave entitlements) and will be available at the employee’s election (subject to suitable evidence as required by the employer).

The statement of the Full Bench also acknowledged that employees who are required to self-isolate would not have access to paid personal leave, unless the employee is experiencing symptoms of illness and is unfit for work during the period.

The FWC expressed that providing for unpaid pandemic leave would “enable more people to remain in employment” whilst supporting “the important public policy objective of encouraging those who should self-isolate, to do so and thereby limit the spread of COVID-19 in workplaces allowing businesses to continue to operate”.

In light of the Government’s announcement of the JobKeeper wage subsidy package, the FWC asked that the Commonwealth clarify whether the JobKeeper payments would extend to workers taking unpaid pandemic leave. The FWC went further to note that, “if the proposed payment is not available to employees on unpaid pandemic leave that fact would mitigate against employees using the proposed new entitlement and may also have the adverse public policy consequence that some employees may choose not to self-isolate when they should do so”.

The Commonwealth responded as follows:

“the Minister confirms that legislation introducing the proposed JobKeeper payment will ensure that the payment will be made to qualifying employees where they are taking unpaid leave, including the pandemic leave proposed by the award variations.”

In addition to two weeks unpaid pandemic leave, the FWC will also insert a model term confirming the right of an employer and employee to mutually agree to take a period of annual leave at half pay.

The vast majority of Modern Awards of interest to ES Subscribers – including popular awards such as Children’s Services Award 2010; Social, Community, Home Care & Disability Services Industry Award 2010; Health Professionals & Support Services Award 2010 and Nurses Award 2010 – will all be varied to include the new provisions.

The FWC also flagged intent to convene a conference of interested parties to address union claims to have awards applicable within the health sector (including Aged Care Award 2010; Health Professionals & Support Services Award 2010; Nurses Award 2010; and Social, Community, Home Care & Disability Services Industry Award 2010) further varied to provide for paid pandemic leave on a ‘per occasion’ basis.

ES Subscribers will be notified by email when a Modern Award they subscribe to has been updated.