By Adele Granata
The Full Bench of the Fair Work Commission has granted temporary paid pandemic leave to aged care employees covered by the Aged Care Award 2010, Nurses Award 2010 and Health Professionals and Support Services Award 2020.
Paid pandemic leave for employees in the aged care industry under the above Awards will be for a three-month period starting 29 July 2020. In this article, I point out what you need to know.
In a Statement issued on 22 July 2020 the Full Bench identified that there had been a significant change in circumstances since their 8 July 2020 Decision to adjourn the application for paid pandemic leave by Unions. In the 22 July Statement, the Full Bench expressed a provisional view that the grant of paid pandemic leave in the Aged Care Award would be justified.
Since the 22 July Statement, various submissions were received including submissions by the Australian Council of Trade Unions, Health Services Union and Australian Nursing & Midwifery Federation which contented that to give proper effect to the reasoning in the Full Bench’s 22 July Statement it would be necessary to extend paid pandemic leave to persons working in the sector who are covered by the Nurses Award and the Health Professionals and Support Services Award.
The Full Bench accepted this and in their 27 July 2020 decision (Decision) gave effect to a new Schedule Y ‘Industry Specific Measures During the COVID-19 Pandemic’ for each the Awards, providing the entitlement to aged care workers, including regular and systematic casuals, to take up to two weeks paid pandemic leave.
In doing so the Full Bench noted that employees in the residential aged care sector are exposed to an elevated risk of being required to self-isolate, and that this is currently manifesting itself in Victoria. The Full Bench went on to say that employees required to self-isolate may not be entitled to paid personal leave and the requirement to self-isolate is predominately to prevent the spread of infection which is especially critical in the aged care sector because of the vulnerability of aged persons to COVID-19 fatalities.
What is the entitlement?
The new Schedule Y in each of the respective Awards provides an employee engaged in the aged care industry is entitled to take up to 2 weeks paid pandemic leave on each occasion the employee is prevented from working (including working from home) because:
- the employee is required by government or medical authorities to self-isolate or quarantine;
- the employee is required by their employer to self-isolate or quarantine;
- the employee is required on the advice of a medical practitioner to self-isolate or quarantine because they are displaying symptoms of COVID-19 or are suspected to have come into contact with a person suspected of having contracted COVID-19;
- the employee is in isolation or quarantine while waiting for the results of a COVID-19 test; or
- because of measures taken by government or medical authorities in response to the COVID-19 pandemic.
The employee must give their employer notice of the taking of leave and of the reason the employee requires the leave. Where an employee is required on the advice of a medical practitioner to self-isolate an employee must, if required by the employer, produce a medical certificate.
An employee cannot take paid pandemic leave under the new provisions if the employee could instead take paid personal/carer’s leave, or if the employee becomes entitled to workers compensation benefits as a result of contracting COVID- 19.
It is also a condition of receipt of the paid leave entitlement that the employee undertakes a COVID-19 test at the earliest opportunity.
How will it be paid?
For a full-time employee, paid pandemic leave is paid at the employee’s base rate of pay for the employee’s ordinary hours of work in the period of the leave.
For a part-time employee, pay for leave taken under the new Schedule Y will be the greater of:
- their agreed ordinary hours of work under clause 10.3(b) (for the Nurses Award and Aged Care Award) or clause 10.2 (for the Health Professionals Award); or
- the average of their weekly ordinary hours of work for the previous six weeks.
For a casual employee (who must be regular and systematic), pay for leave taken will be calculated on the average weekly pay received by the employee in the previous six weeks, or where the employee has been employed for less than 6 weeks, for the duration of their employment.
How will this affect other Awards and industries?
While the Decision was at this time confined to the aged care industry and relevant Awards the Full Bench has left open the possibility of extending the entitlement to other Awards based on continuing developments and future events.
The Full Bench stated their award variations “will not conclude this proceeding” and adjourned the matter leaving it open to any party to apply to have the matter re-listed at short notice.
HR Assured will keep businesses updated with any further development about the possibility of extension of the entitlement to other Awards.
If you have a question about paid pandemic leave for aged care workers, please contact our Telephone Advisory Service.
Adele Granata is an Associate with FCB Workplace Law (our parent company). Adele’s work regularly involves assisting clients with the case management of a broad range of workplace relations matters including high risk terminations, restructure and redundancy and managing ill or injured workers. Adele works closely with clients across a wide range of industries and has particular experience within the retail, sport, health and aged care industries.