FWC introduces unpaid pandemic leave into 99 awards

On 8 April 2020, the Fair Work Commission (FWC) made determinations varying 99 modern awards by inserting a temporary new schedule into these awards. The schedule provides employees with two weeks’ unpaid pandemic leave and the ability to take twice as much annual leave at half their normal pay if their employer agrees.

Affected awards

The new schedule has been inserted into the 99 modern awards set out in Attachment A (on page 37) of the FWC Decision. It will operate from 8 April 2020 until 30 June 2020, however the end date can be extended by application to the FWC. In selecting the 99 awards the FWC had regard to:

  • the industries (and associated awards) that are likely to be impacted by the COVID-19 pandemic in the short and medium term;
  • awards which have a significant proportion of award-reliant employees; and
  • awards with a high proportion of small businesses.

Awards in the Construction, Maritime and Mining and Resources sectors have been excluded. The FWC determined that the businesses in these sectors:

  • have not been adversely impacted (to date) by the COVID-19 pandemic as some other sectors; and
  • do not have a high level of award-reliance and enterprise agreements are relatively common.

Unpaid pandemic leave

Employees who are employed under one of the affected awards can access up to two weeks’ unpaid pandemic leave (or more by agreement with their employer) if they are prevented from working:

  • as a result of being required to self-isolate by government or medical authorities, or acting on the advice of a medical practitioner; or
  • by measures taken by government or medical authorities in response to the COVID-19 pandemic (e.g. an enforceable government direction restricting non-essential businesses).

Employees must notify their employer that they are going to take unpaid pandemic leave and the reason they require the leave, as soon as practicable (which may be after the leave has started). Employers can ask employees to provide evidence that shows why they took the leave.

Unpaid pandemic leave is immediately available to full-time, part-time and casual employees – they don’t have to accrue it. All eligible employees can take the two weeks’ unpaid pandemic leave – it is not pro-rated for part-time and casual employees. Employees don’t have to use all their paid leave before accessing unpaid pandemic leave.

A period of unpaid pandemic leave must start before 30 June 2020, but can finish after that date. The leave will count as service for the purposes of all entitlements under an award and the National Employment Standards under the Fair Work Act 2009 (Cth).

Annual leave at half pay

Applicable employees can take twice as much annual leave at half pay if their employer agrees. This means an employee gets one week’s annual leave payment (including annual leave loading if applicable) for every two weeks of annual leave they take.

Any agreement to take twice as much annual leave at half pay must be recorded in writing and retained as an employee record. As with unpaid pandemic leave, the period of annual leave must start before 30 June 2020, but may end after that date.

The FWC provides the example whereby instead of an employee taking one week’s annual leave on full pay, the employee and their employer may agree to the employee taking two weeks’ annual leave on half pay. In this example:

  • the employee’s pay for the two weeks’ leave is the same as the pay the employee would have been entitled to for one week’s leave on full pay; and
  • one week of annual leave is deducted from the employee’s annual leave accrual.

Contact us

If you would like to discuss these changes and how they might impact your business and workforce, please contact me on 07 3224 0323.

“The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.”
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