Additional measures during the COVID-19 pandemic schedule now inserted into 99 Modern Awards.

The Fair Work Commission has inserted new schedules into 99 awards, outlining additional measures available to employers and employees during the COVID-19 pandemic.

The additional measures include Unpaid Pandemic Leave and Annual Leave at half pay.  The additional measures outlined under these schedules in the awards, will operate from 8 April 2020 until 30 June 2020 and can be extended upon application.

These provisions will apply to all employees covered by the impacted awards. Click here to see the full determination including a list of the awards, which will now include the changes.

Unpaid Pandemic Leave

The new provisions provide:

  • Any employee is now entitled to take up to 2 weeks unpaid pandemic leave if the employee: 

– is required by government or medical authorities or on the advice of a medical practitioner, to self-isolate 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.

  • Employees must provide suitable notice and any reasoning or evidence to support why they require access to the unpaid pandemic leave.

  • Unpaid pandemic leave does not affect any other unpaid or paid leave entitlements, and counts as a period of service for award and NES based entitlements.

  • Leave can be extended beyond 2 weeks by mutual agreement of the employer and employee.

Annual leave at half pay

This new clause now allows an arrangement where instead of the employee taking paid annual leave on full pay, the employee and the employer may agree to the employee taking twice as much leave on half pay. Any agreement reached must be recorded in writing and included in the employee records.

The standard clause provides an example to explain practically how this clause will work:

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); and
  • one week of leave is deducted from the employee’s annual leave accrual.

For both unpaid pandemic leave, and annual leave at half pay, the periods of leave must start before 30 June 2020, but may end after that date. Employers are also reminded that they must not take adverse action against employees exercising their workplace rights as a result of the introduction of these measures.

Have there been any further award changes?

A couple of weeks ago, ER Strategies released an update about the variations to three modern awards allowing increased award flexibility during the COVID-19 crisis. These changes apply to the Restaurant Industry Award, the Hospitality Industry (General) Award and the Clerks (Private Sector) Award. Employers can review the changes to these awards here.

How do the award changes interact with the JobKeeper legislation and the related amendments to the Fair Work Act?

Last week, ER Strategies released an interactive guide outlining the changes to the Fair Work Act and the JobKeeper legislation, covering eligible employers and employees.

The key difference between the award changes and the JobKeeper legislation, is that the additional measures now included in the awards will apply to all employees in a business covered by an affected award, whereas the amendments to the Fair Work Act as a result of the JobKeeper legislation will only be available to employers and employees eligible to participate in the JobKeeper initiative (e.g. where they have suffered a 30% reduction in turnover).

There may be some cross-over between the award changes and the changes to the Act, with the example of annual leave at half pay appearing in both these award changes and the changes to the Fair Work Act.

Employers need to review their employee relations obligations and options for all impacted employees.

ER Strategies will continue to assist our clients navigate these changes to their employee relations arrangements over the coming weeks and months. Clients of ER Strategies can contact the team during business hours on 1300 55 66 37 for assistance. Non-clients can call us, or contact us here, to discuss how we can best help your business as we move through these unprecedented times.

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