The Full Bench of the Fair Work Commission has decided to vary three health sector awards to include paid pandemic leave for employees in the aged care industry affected by COVID-19.
On 8 July 2020, the Fair Work Commission preliminarily rejected applications to vary modern awards to include ‘paid pandemic leave’ for employees who were affected by COVID-19.1
On 27 July 2020, the Commission decided that the new spike in active Victorian cases – especially in the aged care sector – now weighed in favour of including paid pandemic leave for employees in some health sector awards.2
The three affected awards are:
the Aged Care Award 2010;
the Health Professionals and Support Services Award 2020 (only for employees engaged in the aged care industry); and
the Nurses Award 2010 (only for employees engaged in the aged care industry). The draft determinations for each award can be read on the Fair Work Commission’s website. The final determinations will have effect from Wednesday, 29 July 2020 for a (provisional) period of three months.
Effect of Variations
The provisions apply to full-time and part-time workers and to casual employees engaged on a regular and systematic basis.
The effect of the variations will be, subject to notice and evidence requirements, to entitle employees to up to two weeks paid ‘pandemic leave’ per occasion where the employee is prevented from working (including working from home) because:
(a) the employee is required by government or medical authorities, their employer, or on advice from their medical practitioner to self-isolate or quarantine;
(b) the employee is in self-isolation or quarantine waiting for the results of a COVID-19 test; or
(c) of measures taken by the government or medical authorities in response to the COVID-19 pandemic.
There are some restrictions on the employee’s entitlement, including where the employee could instead take paid personal/carer’s leave and where the employee is receiving workers’ compensation benefits resulting from contracting COVID-19.
The Fair Work Commission noted that part of its decision was due to the Department of Health and Victorian State Government’s initiatives to provide financial assistance to aged care sectors.
What Does This Mean for Us?
Employers in the health care sector may now be obliged to provide paid pandemic leave to employees who meet the eligibility criteria, if those employees are in the “aged care industry”. We encourage affected employers to familiarise themselves with the draft determinations as soon as practicable to start planning any administrative changes that will need to be made to allow for the paid pandemic leave, including any systems for employee applications for the leave. Given that the Fair Work Commission gave one day for interested parties to make submissions, the draft determinations are not strictly final, so we also recommend all affected employers check the relevant schedules in each award after the final variations are made.
It is unclear at present whether this will affect employers who file for the approval of enterprise agreements during the three-month period that paid pandemic leave is accessible. Even though it is intended for paid pandemic leave to be temporary, the Fair Work Commission may still take the leave into consideration when undertaking the better-off overall test. The change will likely have little effect on employers who filed applications for approval of an enterprise agreement before the implementation of paid pandemic leave in the relevant awards.
We encourage affected employers to seek financial or accounting advice from their regular advisors regarding the financial assistance to which the Fair Work Commission referred in its decision.
Require further information/assistance? If you require further information or advice, please contact one of our consultants.
1 Health Sector Awards – Paid Pandemic Leave  FWCFB 3561.
2 Health Sector Awards – Paid Pandemic Leave  FWCFB 3940.