Awards changes decided upon by the Fair Work Commission mean workers can now access two weeks of unpaid ‘pandemic leave’.  

The Fair Work Commission is finalising changes to 99 awards that are designed to help employers and workers better cope with the impacts of COVID-19.

The variations mirror some of the changes already made last month to the Clerks, Hospitality and Restaurant awards. These are separate from the powers given to employers under the Fair Work act changes that are being passed alongside the JobKeeper wage subsidy. 

(HRM did a deep dive into the JobKeeper scheme which you can read here.)  

There are two main award variations: unpaid “pandemic leave” and allocations for employees to take double their annual leave at half pay. The Schedule X changes are temporary and due to be reviewed at the end of June 2020. 

The 99 awards selected to be altered are concentrated on industries impacted most by COVID-19 including, health, airlines, food services, education and retail. 

The FWC has said industries such as construction, maritime services and mining, are not included in phase one of its decision, citing the facts that they’ve been less impacted by the downturn and that they are less reliant on awards.

Unpaid pandemic leave 

This change allows an employee to take two weeks of unpaid leave, separate from any accumulated annual or sick leave. 

This is the stand out change from Schedule X and one that differs from the recent Clerks, Hospitality and Restaurant award changes (which are outlined later in this article).

Pandemic leave can be taken by an employee who is asked to to self-isolate for medical reasons or is otherwise given a directive to stay home by government or medical authorities. However, it does not cover those caring for a COVID-19 patient.

Employees taking pandemic leave can still receive the JobKeeper wage subsidy, however since JobKeeper is tied to businesses, not individual workers, not everyone would be eligible. 

According to the FWC summary of the decision, the employee must give notice to their employer “as soon as practicable”. The employer can require the employee to give evidence “that would satisfy a reasonable person” that their leave is valid.

As of today, pandemic leave will be available effective immediately to all employees under the relevant awards and can be taken until 30 June 2020 (unless further variations are made). It is okay if the leave extends beyond 30 June, but it must start before.

Employees can only utilise this leave once, so if they contract COVID-19 twice (which experts say is unlikely, but not impossible) or need to quarantine on multiple occasions, they will not be covered for subsequent isolation periods. 

Employees do not need to exhaust other leave options, such as annual or sick leave, in order to take pandemic leave. 

Interestingly, in the FWC’s statement proposing the changes, it acknowledges the updated leave might not be enough to assist some workers. 

“We acknowledge that the proposed unpaid pandemic leave may be regarded, by some, as a minimalist measure… But the proposed term is intended to provide a quick response to the current crisis and, in our view, the limited measure we propose is likely to attract broader support.”

Annual leave at half pay

Under Schedule X, employees and employers can now can agree to double annual leave at half pay.  

For example, if someone has one week of annual leave accrued, they can take two weeks of leave while only receiving one week’s pay over that period. Only one week of accrued leave would be deducted. 

This change was previously implemented in the Clerks, Hospitality and Restaurants awards in March.

Any agreement must be detailed in writing for both parties to keep for their records. 

The FWC also considered extending the powers of employers to be able to direct employees to take annual leave and measures to facilitate decreasing hours for full-time and part-time employees. 

Though they held back on incorporating these changes into the 99 awards outlined in their decision summary, they are included in the Schedule I variations to the Clerks and Restaurants awards and the Schedule L changes to the Hospitality award.

For workers who are entitled to the benefits, both double annual leave at half pay and pandemic leave are considered workplace rights.

Changes to Clerks, Restaurant and Hospitality awards

There are three major changes to these awards, all are designed to give employers and employees more flexibility during the pandemic.

1. There is greater flexibility in job roles and duties
2. There is greater flexibility in arranging work hours
3. There is increased flexibility when it comes to leave

These changes are also temporary and will be reviewed on 30 June 2020.

Work flexibility

In reference to the first change, employers can require their employees to do “any task or skill they have the competency for”, so long as it is safe to do so, even if this task isn’t usually part of their role. 

If the task involves an employee working at a higher classification then the employee needs to be paid accordingly. The amount an employee is paid is dependent on how long they perform the task and varies between Awards. 

Under the Restaurant and Hospitality Awards if they work under two hours at the higher classification, they should be paid for the time they worked. If they work more than two hours, they must be paid at a higher rate for their entire shift, even if they resume their usual task for the rest of the time. This is different in the Clerks award.

Flexible hours

Under the temporary changes to Restaurant and Hospitality awards, employers can reduce the number of hours an employee works. The minimum number of hours for full-time staff is now 22.8 hours per week. Employers only have to honour 60 per cent of part-time staff’s guaranteed hours. 

Employers need to discuss the changes with their employees and provide as much notice as they can. If an employee is part of a union, the union must be informed of these changes.

Though the Clerks award also has measures for employers to reduce staff hours, the process is more complex. According to thee Fair Work Ombudsman website:

“Employers can temporarily reduce their permanent employees’ hours of work to not less than 75% of their full-time ordinary hours or agreed part-time hours immediately prior to the reduction. This can be for the whole business or a section of the business.

“If an employer wants to reduce their employees’ hours, the employees will need to vote in favour of the reduction of hours. At least 75% of the full-time and part-time employees in the business or section of the business must approve the temporary reduction.”

Employers under all three awards will continue to accrue leave as if they were working their ordinary (pre-reduction) hours. 

Flexible leave

The changes also give employers some power to instruct employees to take annual leave. The award changes urge employers to “consider the employee’s personal situation” before asking them to do so. This is another area where the Clerks award differs.

Under the changes, Restaurant and Hospitality workers must be given 24 hours’ notice. Those under the Clerks award must be given one week’s notice and they can’t be asked to take annual leave if it would mean the employee has less than two weeks annual leave accrued. 

As stated previously, the changes are due to be reviewed on June 30 2020. However, some of these changes are similar to Fair Work Act amendments passed in parliament on April 8, 2020 alongside the JobKeeper wage subsidy. The JobKeeper package is due to be in effect until August 2020.  

If you think you are impacted by these award changes, we urge you to seek independent advice. The Fair Work Ombudsman website is a good resource for further information.

The Australian HR Institute is looking to support the HR profession by providing quality advice, resources and training during the COVID-19 pandemic and beyond. Therefore, we are surveying the HR community to identify stress points during this time, as well as how AHRI can best provide assistance. Click here to take part.