Our recent articles have warned of temporary changes to more modern awards as the pandemic crisis escalates in Australia. Sure enough, the Fair Work Commission (FWC) of its own volition has now flagged significant pandemic-related changes to 100 modern awards. With submissions having been sought by the FWC by 4pm on Monday 6 April, subject to the submissions received, it is likely that a decision making the changes will be handed down mid-next week.
Amongst the modern awards earmarked for amendment, the most notable are the awards of more common application, including those covering the cleaning services, retail and manufacturing industries.Modern awards covering the mining, maritime and building construction/joinery industries will seemingly be excluded from the proposed changes, with the FWC noting that such industries have been the least impacted by the pandemic. In that regard the Australian Bureau of Statistics reports that 37% of businesses in mining and approximately 45% of business in construction have to date been adversely affected, as compared to 78% of businesses within the hospitality and services industries.
The proposed changes
We have summarised the significant proposed changes below:
1. Unpaid pandemic leave
An employee will be able to request to take up to two weeks' unpaid leave if the employee is required to self-isolate or is otherwise prevented from working due to responsive action taken by medical authorities or the Australian Government. This period of unpaid leave would not affect any entitlement to any leave accrual and would count towards the employee's period of continuous service.
An employee would be required to notify their employer of their intention to access the unpaid pandemic leave as soon as reasonably practicable and, if required by the employer, provide suitable evidence that the leave is taken for its intended purpose.
2. Annual leave at half pay
If mutually agreed, an employee will be able to access their annual leave accrual at half-pay for a longer leave period (for example: where one week of annual leave has accrued, the employee may agree to take two weeks of leave at half pay).
Any such agreement would need to be in writing and be kept on the employees' file.
The proposed amendments will have a nominal expiration date of 30 June 2020, however this date will be able to be readily extended to allow flexibility to adapt to the COVID-19 pandemic.
The stern warning to employers which will come with the changes
Accompanying the proposed amendments will be express notes warning employers of their general protections obligations where an employee seeks to access unpaid pandemic leave and/or annual leave at half pay.
Utilising the proposed pandemic leave and/or annual leave amendments will be a workplace right for the purposes of the general protections provisions of the Fair Work Act 2009 (Cth), meaning that employers will be susceptible to general protections claims if they take or organise (or threaten to) adverse action against an employee (such as terminating their employment, for instance) in connection with their pandemic leave rights.
Employers should heed this warning and not only ensure that they understand the proposed changes once they take effect, but that they ensure their understanding of the relevant employee rights and the implications of any adverse action. If your business requires help in understanding or navigating these issues, please contact a member of our Employment team who can assist.
If you require further information or have any queries in relation to this legal update, please contact Michelle Dawson or Matthew Smith.
We would like to acknowledge the contribution of Nicole Davis to this article.