The FWC on the front foot: “Pandemic leave” and annual leave at half pay

On 1 April 2020, the Fair Work Commission (FWC) released a statement proposing to temporarily vary 103 Awards (on the Commission’s initiative) to include an entitlement to unpaid “pandemic leave” and to include the flexibility for employees to take annual leave at half pay.

Pandemic leave

This measure is designed to fill in the ‘regulatory gap’ which exists where employees are required to self-isolate in circumstances where they may not have access or an entitlement to personal leave under the National Employment Standards. This would apply to casuals and to those who are required to self-isolate but who are not known to be affected by COVID-19 (such as where they have been exposed to a known case) or who do not have sufficient paid leave to cover the period of self-isolation (remembering that the NES entitlement is 10 days per year for a full-time employee). This also applies to those who must self-isolate because they are confirmed cases but who nevertheless are asymptomatic or are otherwise ‘fit for work’ (meaning that they are not technically eligible to access personal leave).

Although many employers and employees will reach agreement as to the taking of annual leave or paid personal leave during any required self-isolation, where that agreement is not reached, employees are nevertheless placed in the impossible position of having to comply with public health directions but in doing so, place their employment in jeopardy. Not all of those employees will have access to unfair dismissal or be protected by the prohibition on dismissing an employee for a temporary absence due to illness.

The proposed ‘pandemic leave’ will give Award-covered employees the option of taking up to 2 weeks’ unpaid leave if required by government or medical authorities or acting on medical advice, to self-isolate or who are otherwise prevented from working by measures taken by government or medical authorities in response to the COVID-19 pandemic where the employee is required to work at the employer’s premises.

There are notice and evidence requirements before the proposed pandemic leave can be accessed. The leave would be available to all full-time, part-time and casual Award-covered employees and is not pro-rated. There would also be no requirement that employees first exhaust paid leave entitlements. Pandemic leave would also count in terms of the employee’s service for the purposes of accruing Award and NES entitlements.

Annual leave at half pay

The other measure proposed by the FWC is the ability for employees (entitled to paid annual leave) to agree with their employer to access their paid annual leave at half pay. This means that an employee could, for example, take 4 weeks’ annual leave over an 8 week period at half pay. Where this is agreed, the parties must record the agreement in writing and retain it as an employee record.

These measures are temporary and, at this stage, are proposed to operate until 30 June 2020.

The FWC has called for submissions in relation to this proposal by 4pm on Monday 6 April 2020. If no submissions are received, the FWC will determine the matter without hearing. It will otherwise hear the matter at 2pm on Wednesday 8 April 2020. You can read the full statement, including a full list of the affected Awards here.

This statement comes hot on the heels of 3 recent FWC decisions ordering temporary COVID-19-related variations to the Hospitality Industry (General) Award 2010, the Clerks – Private Sector Award 2010 and the Restaurant Industry Award 2010. Those orders were made in response to joint applications by employer organisations and unions. You can read more about those changes here.