On 1 April 2020, the Fair Work Commission (FWC) announced a preliminary view regarding the variation of many Modern Awards to provide an entitlement to “unpaid pandemic leave” and annual leave at half pay. This action is being proposed by the FWC on its’ own motion as it can do under section 175 of the Fair Work Act, 2009. A final determination will be made following a short consultation period, and if necessary, a hearing. A hearing will only occur if submissions opposing the proposal are received by the FWC. If there is a hearing, it will be held on 8 April 2020.
Unpaid pandemic leave
The purpose of the proposed leave is to fill a regulatory gap whereby employees who are required to self-isolate and who are not actually unwell, do not currently have a form of leave which they can access or have insufficient personal or annual leave. Currently, casual employees who do not have any leave entitlements are left without any protections if they were to be required to self-isolate or become ill due to COVID-19. This period of unpaid pandemic leave will provide casual employees with protection should they need to take time away from the workplace.
The proposed unpaid pandemic leave is intended to provide the following:
- An employee may elect to take up to 2 weeks’ unpaid leave if the employee is required, by government or medical authorities or acting on medical advice, to self-isolate or is otherwise prevented from working by measures taken by government or medical authorities in response to the COVID-19 pandemic in circumstances where the employee is required to work at premises operated by the employer.
- Unpaid pandemic leave will not break an employees’ continuous service and they will continue to accrue entitlements during the period of unpaid leave.
Employees who wish to access the unpaid pandemic leave will need to provide the employer with as much notice as is practicable, and further, may be required to provide reasonable evidence to support the request for unpaid pandemic leave.
Annual leave at half pay
The proposal is to allow an employer and employee to agree, in writing, that the employee may take accrued annual leave at half pay. Essentially, this would allow employees to take twice their accrued annual leave but be paid only 50% of their normal weekly wage for each week of leave.
We will provide an update on the status of these proposals as soon as it is available, as well as specific details of the Awards that are impacted. Until the FWC actually varies the Awards, the above proposed variations do not apply.
If you require advice on any COVID-19 leave entitlements or HR related matters, contact us on MazarsHR@mazars.com.au or 07 3218 3919.
Please note that this publication is intended to provide a general summary and should not be relied upon as a substitute for personal advice.
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