Authors: Madeleine Boyd and Emma Pritchard

The Fair Work Commission made a determination on 8 April 2020 to vary 99 of the Modern Awards. The determination inserted a new temporary schedule known as Schedule X, which allows for certain Award covered staff to take 2 weeks’ unpaid pandemic leave and annual leave at half pay in certain circumstances. These changes provide some much-needed flexibility for many Australian employers grappling with the unprecedented impact of COVID-19 on their workplaces.

These changes are in addition to the Job Keeper Amendments made the same day, to the Fair Work Act 2009 (Cth). A copy of our client alert on the Job Keeper Amendments can be found here.

What are the changes in relation to unpaid pandemic leave?

Schedule X introduced a new form of unpaid leave known as ‘pandemic leave’ to each of the 99 Modern Awards. Specifically, relevant Award covered employees are now able to access up to 2 weeks unpaid pandemic leave, if they are unable to work because:

  1. they are required to self-isolate by Government or medical authorities or in accordance with the advice of a medical practitioner; and
  2. of measures taken by the Government or medical authorities in response to the pandemic.

Unpaid pandemic leave is immediately available to full-time, part-time and casual employees and there is no need for employees to exhaust their paid entitlements before accessing the leave. Further, any period of unpaid pandemic leave will count towards an employee’s period of service under the relevant Award and the National Employment Standards.

In order to access the leave entitlement, employees need to ensure that they notify their employer:

  • as soon as possible that they are planning to take unpaid pandemic leave (can be after the leave has started);
  • the reason for taking the unpaid pandemic leave; and
  • how long they expect to be on leave or away from work.

Employers can make a request for evidence demonstrating why the leave was taken.

The period of unpaid pandemic leave must start prior to 30 June 2020 but can finish after that date.

What are the changes in relation to Annual Leave?

The new Schedule X also introduced some changes to the annual leave provisions. Specifically, the relevant Award covered employees may agree with their employer to take annual leave at half pay for double the period. This effectively entitles eligible employees to double the amount of annual leave at half the rate of pay.

For instance, if an employee has one week of annual leave accrued, they can take 2 weeks of leave receiving the equivalent of one weeks’ pay.

This agreement needs to be detailed in writing and kept by employees and employers for their records.

Any period of annual leave under this provision needs to start before 30 June 2020 but can finish after that date.

Importantly this form of leave is not available to teachers employed under the Teachers Award.

What Awards are covered?

The Fair Work Ombudsman Website provides a list of the 99 Awards impacted by the above changes.

Most relevantly, the changes apply to some of the key industry Awards including the Banking and Finance Award; Clerks Award; General Retail Industry Award; Social Community, Homecare and Disability Industry Award; Restaurant Industry Award; Alpine Resorts Award and the Legal Services  Award.

What else do employers need to know?

The entitlement to unpaid pandemic leave and annual leave at half pay are both considered workplace rights. As such, employers need to ensure that they do not take or propose to take any adverse action against any employees seeking to access these new forms of leave.

Apart from the changes discussed above, the Fair Work Commission has also made specific variations to the Hospitality Industry Award and the Clerks Award. If these Awards are applicable to your workplace, please let us know if you require tailored advice about how the changes will impact your workplace.

Where can you find further information?

Given the pace at which variations are being made to Modern Awards and the Fair Work Act 2009 (Cth), it is crucial to remain up to date with any changes that may impact your business. If you require assistance in restructuring your workplace, preparing a COVID-19 leave policy that is tailored to your business, or further information understanding your rights and obligations in this rapidly evolving area of the law, please contact our Harmers legal team in Sydney: +61 2 9267 4322, Melbourne: + 61 3 9612 2300 or Brisbane: + 61 7 3016 8000.

For further information please also see:

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