It is expected that from next week the Fair Work Commission will amend 103 of the 122 Modern Awards to introduce two new measures to respond to the COVID-19 crisis.

A full list of the Modern Awards to be changed and the Fair Work Commission’s Statement dated 1 April 2020 can be found here.

We expect the proposed measures to be in operation from mid to late next week until 30 June 2020.

The changes include:

Unpaid Pandemic Leave

Any employee may elect to take up to 2 weeks’ unpaid leave if they are required:

  • to self-isolate by Government or medical authorities or acting on medical advice to self-isolate; or

  • are otherwise prevented from working due to measures taken by the Government or medical authorities.

Employees will be able to take the full 2 weeks immediately once introduced as it will not be accrued progressively like other leave. It will not be pro-rated and will be available to all full-time, part-time and casual employees.

It will not be necessary for employees to exhaust their paid leave entitlements before accessing unpaid Pandemic Leave.

Employees will still need to:

  • give notice of the taking of such leave; and

  • provide evidence that would satisfy a reasonable person that the leave is being taken for those reasons.

This leave will not affect any other paid or unpaid leave entitlements of employees and will count as service for the purposes of Modern Award entitlements and the National Employment Standards.

It is not expected to operate on a ‘per occasion’ basis, so it will not assist employees who are required to self-isolate more than once, and will not provide an entitlement to those caring for others who are required to self-isolate.

Annual Leave at Half Pay

Employees will be able to agree to take twice as much annual leave on half pay.

This will need to be recorded in writing and retained as an employee record. This will protect both parties from disputes later.

Additional Protections

An employee who utilises these proposed leave provisions will have a workplace right under the adverse action provisions of the Fair Work Act 2009 (Cth).

Which Modern Awards will not have these changes?

These changes will not be made to all Modern Awards. A number of Modern Awards in the following industries will be excluded at this stage:

  • Building and Construction;

  • Maritime; and

  • Mining.

The Fair Work Commission has formed the view that businesses in these sectors have not been adversely impacted (to date) by the COVID-19 pandemic as some other sectors, nor do they have a high level of Modern Award reliance, with common use of Enterprise Agreements instead.

As soon as the Modern Awards are varied, we will update you.

If you need urgent advice or assistance in managing the impact of Coronavirus in your workplace, please contact IR Legal Solutions to discuss.

This content is not be a substitute for legal advice and are for information only. Employers should obtain advice that is specific to their circumstances and business operations, and not rely on this publication as legal advice.