Last night, 8/4/2020, as the country waited for the final details of the JobKeeper Wage Subsidy program, the Fair Work Commission met, and decided to insert a model clause into 99 Modern Awards, providing all employees with up to 2 weeks unpaid Pandemic Leave.

Following a call for comment late last week, that closed on 6/4/2020, the Fair Work Commission, has, on its own action, determined to insert a provision for 2 weeks unpaid Pandemic Leave into 99 awards.  The Commission last night considered the responses, and agreed to postpose the addition of this clause into any of the construction Awards, but proceeded to add it to all other Modern Awards.

“The aim of the change is to ensure that those employees who are required to self-isolate, are able to do so without fear of loosing their jobs” explained ACAPMAs Executive Manager for Employment and Training, Elisha Radwanowski.

“This leave will be available to all employees, including casuals.  Importantly, even though it may take a few days to appear in the Award, it is available to staff as of 8/4/2020” explained Elisha.

Which Awards are effected?

The Model Clause will be inserted into the Awards, which includes the three main downstream fuel industry Awards;

The insertion process can take several days, and the links above will go to the most recent version of the Award.  Once the Award has had the Model Clause inserted it will be noted right at the top of the document (just under the Title) with something like;

“This Fair Work Commission consolidated modern award incorporates all amendments up to and including 8 April 2020 (#######).”

What does the Model Clause say?

Below is a copy of the Model Clause that will be inserted into the Awards (note the references to annual leave loading will be removed from the Model Clause if the Award does not provide for annual leave loading);

Schedule X—Additional measures during the COVID-19 pandemic

X.1 Subject to clauses X.2.1.(d) and X.2.2(c), Schedule X operates from 8 April 2020 until 30 June 2020. The period of operation can be extended on application.

X.2 During the operation of Schedule X, the following provisions apply:

X.2.1 Unpaid pandemic leave

(a) Subject to clauses X.2.1(b), (c) and (d), any employee is entitled to take up to 2 weeks’ unpaid leave if the employee is required, by government or medical authorities or acting on the advice of a medical practitioner, to selfisolate and is consequently prevented from working, or is otherwise prevented from working by measures taken by government or medical authorities in response to the COVID-19 pandemic.

(b) The employee must give their employer notice of the taking of leave under clause X.2.1(a) and of the reason the employee requires the leave, as soon as practicable (which may be a time after the leave has started).

(c) An employee who has given their employer notice of taking leave under clause X.2.1(a) must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the leave is taken for a reason given in clause X.2.1(a).

(d) A period of leave under clause X.2.1(a) must start before 30 June 2020, but may end after that date.

(e) Leave taken under clause X.2.1(a) does not affect any other paid or unpaid leave entitlement of the employee and counts as service for the purposes of entitlements under this Award and the National Employment Standards.


NOTE:
The employer and employee may agree that the employee may take more than 2 weeks’ unpaid pandemic leave. X.2.2 Annual leave at half pay (a) Instead of an employee taking paid annual leave on full pay, the employee and their employer may agree to the employee taking twice as much leave on half pay. (b) Any agreement to take twice as much annual leave at half pay must be recorded in writing and retained as an employee record. (c) A period of leave under clause X.2.2(a) must start before 30 June 2020, but may end after that date.

EXAMPLE: Instead of an employee taking one week’s annual leave on full pay, the employee and their employer may agree to the employee taking 2 weeks’ annual leave on half pay. In this example: • the employee’s pay for the 2 weeks’ leave is the same as the pay the employee would have been entitled to for one week’s leave on full pay (where one week’s full pay includes leave loading under the Annual Leave clause of this award);2 and • one week of leave is deducted from the employee’s annual leave accrual.

NOTE 1: A employee covered by this Award who is entitled to the benefit of clause X.2.1 or X.2.2 has a workplace right under section 341(1)(a) of the Act.

NOTE 2: Under section 340(1) of the Act, an employer must not take adverse action against an employee because the employee has a workplace right, has or has not exercised a workplace right, or proposes or does not propose to exercise a workplace right, or to prevent the employee exercising a workplace right. Under section 342(1) of the Act, an employer takes adverse action against an employee if the employer dismisses the employee, injures the employee in his or her employment, alters the position of the employee to the employee’s prejudice, or discriminates between the employee and other employees of the employer.

NOTE 3: Under section 343(1) of the Act, a person must not organise or take, or threaten to organise or take, action against another person with intent to coerce the person to exercise or not exercise, or propose to exercise or not exercise, a workplace right, or to exercise or propose to exercise a workplace right in a particular way.

More Information

Summary of the Commissions Decision https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am202012-summary-dec-080420.pdf

Here to Help

ACAPMAs Employment Professionals are here to help with members questions.  Email employment@acapma.com.au for assistance

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