99 Modern Awards were temporarily changed on 8 April 2020 to give employees access to 2 weeks Unpaid Pandemic Leave, and also enable them to take Annual Leave at Half Pay. These provisions will remain in operation until 30 June 2020.

The Fair Work Commission decided not to take a broader approach at this time and noted that most Modern Awards provided for changes in the hours of work for part-time employees, and that there was no impediment in most Modern Awards for full-time employees reaching agreement with their Employers to go part-time. The Fair Work Commission will address any consent variations to Modern Awards separately, on application. There were many submissions put to the Fair Work Commission highlighting the need for additional flexibility for Employers, so we will keep a watching brief and provide a further update if additional flexibility provisions enabling Employers to respond to the COVID-19 crisis are introduced.

The full list of Modern Awards that have these new provisions can be accessed here. Modern Awards in the Building and Construction, Mining and Maritime are excluded from these changes.


When will an Employee be able to take Unpaid Pandemic Leave?

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

  • to self-isolate by the 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 (for example; an Enforceable Government Direction restricting non-essential businesses).

Unpaid Pandemic Leave will not accrue progressively like other leave. Employees will therefore be able to take the full 2 weeks immediately now that the leave provisions have been introduced. It will not be pro-rated and will be available in full 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.

Unpaid Pandemic Leave will need to start before 30 June 2020, but can finish after that date.

Notice and Satisfactory Evidence will still be required

Importantly, 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.

No Impact on Service

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.

What is ‘Self-Isolation’?

The Fair Work Commission confirmed that this will be a circumstance where a person may have been exposed to COVID-19 but is not known to be infected, and where a person has been diagnosed with COVID-19 but is not ill enough to require hospitalisation.

How many times can an employee take Unpaid Pandemic Leave?

Unpaid Pandemic Leave can only be taken by an employee once, so it will not assist employees who are required to self-isolate more than once.

When can Personal/Carer’s Leave be used instead of Unpaid Pandemic Leave?

Employees (excluding Casuals) who have contracted COVID-10 and are unwell may have an entitlement to access their paid Personal/Carer’s leave under the National Employment Standards.

Additional Protection

An Employer must not dismiss an employee or take adverse action against an employee because the employee is entitled to, or takes Unpaid Pandemic Leave. This is because an employee who utilises these leave provisions will have a workplace right under the adverse action provisions of the Fair Work Act 2009 (Cth).


Employees will be able to agree with their Employer to take twice as much Annual Leave at Half Pay. This will give them Annual Leave at half the pay with double the time off work. For example; an employee is paid for 1 week of Annual Leave (and Annual Leave Loading if payable) and they will get to take 2 weeks off.

Employers will need to agree to such leave arrangements.

Annual Leave at Half Pay will need to be recorded in writing and retained as an employee record. This will also protect both parties from disputes later.

Again, Annual Leave at Half Pay will need to start before 30 June 2020, but can finish after that date.

Additional Protection

An Employer must not dismiss an employee or take adverse action against an employee because the employee is entitled to or takes Annual Leave at Half Pay.

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.