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14 April 2020

Pandemic leave and changes to annual leave introduced by the FWC in response to COVID-19

On 8 April 2020, the Full Bench of the FWC handed down its decision to introduce these changes (with minor drafting amendments) into 99 modern awards.

In our earlier article this month, we reported that the Fair Work Commission (FWC), in response to certain employment issues created by COVID-19, proposed to introduce into modern awards two weeks’ unpaid ‘pandemic leave’ and the option to take annual leave at half pay. You can read our article here.

On 8 April 2020, the Full Bench of the FWC handed down its decision to introduce these changes (with minor drafting amendments) into 99 modern awards. This will be known as phase 1. A full list of impacted awards can be found at Attachment A to the decision. The construction, maritime, and mining and resource sector awards were excluded from phase 1, on the basis that the businesses within those sectors have not yet been as adversely impacted and do not have a high level of award-reliance.

The decision inserts ‘Schedule X’ into the 99 modern awards. Schedule X will operate until 30 June 2020 and may be extended by the FWC. We summarise the content of Schedule X below.

Unpaid pandemic leave

A full-time, part-time or casual employee is able to elect to take up to two weeks’ unpaid leave if they are required to self-isolate or are otherwise prevented from working by measures taken by government, medical authorities or the advice of a medical practitioner in response to the COVID-19 pandemic.

An employee must give their employer notice and reasons why they are taking unpaid pandemic leave as soon as practicable. The employer may require the employee to provide evidence to support the taking of this leave. Taking unpaid pandemic leave will not affect any other paid or unpaid leave entitlements of the employee and the employee will continue to accrue their entitlements while on unpaid pandemic leave.

Annual leave at half pay

An employee who has accrued paid annual leave may, by agreement with their employer, take twice as much leave on half pay. The agreement to take annual leave at half pay must be in writing.

If an employee agreed to take one week of paid leave over two weeks, the employee’s full pay for the two weeks’ leave would be same as the pay the employee would have been entitled to for one week of paid leave on full pay (including any leave loading) and one week of leave would be deducted from the employee’s annual leave accrual.

What employers need to do

Employers should check any relevant modern awards to see if these new provisions apply to their employees. If so, employers should notify employees of these benefits and start having discussions with employees about possible leave options.

If employers require advice about their specific workplace, contact the Workplace Relations and Safety Team.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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Annie Smeaton
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