By Amy La Verde

16 April 2020

On Wednesday, 8 April 2020, as a result of the COVID-19 Pandemic, a six (6) member Fair Work Commission full bench, made the determination to amend 99 Awards by inserting a temporary  new Schedule. The Schedule provides employees covered by the affected Awards with an entitlement to take annual leave at half pay (by agreement) and access to two weeks unpaid pandemic leave (“entitlements”). The entitlements are effective from the employee’s first full pay period on or after 8 April 2020 until 30 June 2020[1].

Unlike the amendments to the Clerks- Private Sector Award 2010[2], the Hospitality Industry (General) Award 2010[3] and the Restaurant Industry Award 2010[4] that came into effect at the end of March, which was made by application from relevant interested parties, the variation of 99 Awards was at the initiative of the Commission.

Unpaid Pandemic Leave

Unpaid Pandemic leave allows employees to take up to two weeks unpaid leave if the employee:

  • Is required to self-isolate by the government, medical authorities or given medical advice to self-isolate;
  • Is prevented from working on account of measures taken by the government or medical authorities in response to the pandemic (for example, an enforceable government direction).

The employee must give notice to their employer and a reason as to why the leave is necessary as soon as possible. If the employer requests evidence to show the leave is taken for the reason described above, the employee must provide this. Unpaid pandemic leave does not affect other paid or unpaid leave entitlements and counts as service. This entitlement will automatically apply in full to all full-time, part-time and casual employees up until the 30 June 2020. The leave entitlement does not operate on a ‘per occasion’ basis and is not applicable to those caring for others who are compelled to self-isolate.

Annual Leave at half pay

This term allows an employer and employee, by written agreement, to take twice as much annual leave at half the rate of their pay[5]. The agreement must be in writing and retained on the employee’s record.

For example, an employer and employee agree that 1 week of annual leave will be taken at half the rate of pay. The employee’s annual leave pay for the 2 weeks will be paid as 1 weeks leave on full pay.

Workplace Rights and the Potential for General Protections claims against Employers

The new entitlements under the affected Awards, will constitute a “workplace right” for the purposes of section 341(1)(a) of the Fair Work Act 2009 (“the Act”). The standard workplace right provisions apply as per section 340 – 343 of the Act. As a result, an employer must not dismiss an employee or take any other adverse action against an employee who requests or accesses either of the new entitlements. To do so may result in the employee bringing a claim in the Fair Work Commission seeking a general protections remedy.

Please contact a member of our Team if you would like assistance or advice in relation to these changes.

[1] This end date may be extended by the Commission by application.

[2] In summary, the amendment to this Award including flexibility of terms, during the coronavirus, relating to an employee’s classifications and duties, minimum engagement/pay for part-time and casual employees, span of hours changes while working at home, full-time and part-time employees’ hours of work and directions to take annual leave.

[3] In summary, the amendment to this Award including flexibility of terms, during the coronavirus, relating to an employee’s classifications and duties, full-time and part-time employees’ hours of work and directions to take annual leave.

[4] In summary, the amendment to this Award including flexibility of terms, during the coronavirus, relating to an employee’s classifications and duties, full-time and part-time employees’ hours of work and directions to take annual leave.

[5] The annual leave at half pay provision is permitted by section 55(4) of the Act as it is an ancillary or incidental term supplementing the NES.

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