1. UNION APPLICATIONS FOR PAID PANDEMIC AND SPECIAL LEAVE
A number of unions have made applications to vary nine ‘health sector’ modern awards, including those that cover the aged care sector, to allow for paid pandemic and special leave.
LASA will not be supporting the applications in their current form, given that there is no funding to cover these additional costs to our Members. These applications aim to vary the above modern awards to provide for the following two new entitlements up to 28 September 2020:
- Two weeks of paid pandemic leave for full-time, part-time and casual employees when:
– required by government or medical authorities to self isolate;
– required by their employer to self isolate;
– required on the advice of a medical practitioner to self isolate; or
– prevented from working by measures from government or medical authorities in response to the pandemic.
- Unlimited paid special leave for full-time, part-time and casual employees who are diagnosed with COVID-19 until they are given a medical clearance to return to work. The employee will not need to exhaust their personal (sick) leave prior to taking the special leave.
We will keep Members up to date on this matter. Details of the relevant modern awards and applicant unions are available here.
2. COVID-19 AGED CARE RETENTION BONUS
On 20 March 2020 the Federal Government a COVID-19 retention bonus to ensure continuity of the workforce in both residential aged care and home care.
Eligibility for the Payments
There are two types of payments:
- For “direct care workers” in residential care facilities. This will include personal care workers, registered nurses, enrolled nurses and allied health; and
- For “home care workers” working in the home care sector. This will include workers providing clinical care, personal care, cleaning, home support activities and meal preparation, social support, shopping, community access and transport, allied health and respite.
It is understood that full-time and eligible part-time and casual employees will be entitled to receive the payment however the Government has not yet released the criteria for eligibility.
- Full-time “direct care workers” will receive up to $800 per quarter, paid for two quarters.
- Full-time “home care workers” will receive up to $600 per quarter, paid for two quarters.
Eligible part-time and casual employees will receive pro rata amount of the entitlement for full-time employees. The Government has not yet released guidance on how the pro rata amount should be calculated.
Timing of the Payments
The Government has advised that the payments will be made in June and September and that they will cover the preceding three month periods. This will no doubt impact on the eligibility for the payments in terms of when employees were employed during those periods.
LASA continues to request further details from the Federal Government and will keep Members informed through the Health Updates. If you have questions regarding the retention bonus please email LASAAdvisoryTeam@lasa.asn.au
3. JOBKEEPER PAYMENT
Eligible employers can access the JobKeeper payment from the Government to assist them to continue to pay their eligible employees. It is a payment of $1,500 per fortnight per eligible employee from 30 March 2020, for a maximum period of six months.
The JobKeeper Payment is administered by the Australian Tax Office. Eligible employers are now able to register for the scheme until 31 May 2020. Once registered the eligible employer will then need to submit the details of specific eligible employees to the ATO.
4. LASA Q&A – TEMPORARY JOBKEEPER CHANGES TO THE FAIR WORK ACT
The Fair Work Act 2009 has been temporarily varied, effective 9 April-28 September 2020, to assist employers who are eligible for JobKeeper to effectively utilise staff during the pandemic.
These provisions are not available to employers who are not eligible for JobKeeper. LASA’s Employment Relations team has prepared the following Q&As to assist Members:
Q1: What can I direct my employees to do under the temporary changes to the Act?
A1: An employer can give a JobKeeper Enabling Stand Down Direction if the employee cannot be usefully employed for their normal days or hours because of the COVID-19 pandemic or government initiatives to slow the transmission of COVID-19. While a JobKeeper Enabling Stand Down Direction applies, the employer must ensure the employee’s hourly base rate of pay is not less than what would have applied without the direction. There are three types of directions that an employer can make to an employee and are as follows:
- Reducing an employee’s ordinary hours of work: A Direction reducing an employee’s ordinary hours of work is called a ‘JobKeeper Enabling Stand Down Direction’. By giving an employee a JobKeeper Enabling Stand Down Direction, an employer can direct the employee to:
- not work on a day or days that the employee would usually work;
- work for a shorter time than the employee would normally work on one or more days; or
- work fewer hours than the employee’s ordinary hours of work
and not pay the employee for the period that work is not performed.
- The duties to be performed by the employee: An employer can direct an employee to perform any duties that are within the employee’s skill and competency. The duties the employer directs the employee to perform need to be safe and reasonably within the scope of the employer’s business operations.
- The location of the employee’s work: An employer can direct an employee to perform duties at a place that is different from the employee’s normal place of work, including at the employee’s home. If the employer directs the employee to work at a place that is not their home, the employee must not be required to travel an unreasonable distance. It must be safe for the employee to work at the place directed, and reasonably within the scope of the employer’s business operations.
Q2: As the employer, am I required to consult with the employee in relation to the JobKeeper Direction or can I just tell them what changes are occurring?
A2: An employer must engage in consultation with the employee in relation to the JobKeeper Direction. Specifically, the employer must give the employee written notice of the intention to give the JobKeeper Direction at least three days before the direction is given and consult with the employee or their representative about the Direction. At the moment, there is no prescribed form in which the employer gives the notice however, it must be in writing.
Q3: How does the JobKeeper Direction impact on other terms and conditions of employment?
A3: JobKeeper Enabling Directions temporarily modify employment terms and conditions in the way that is specified in the Direction, however they do not change other terms and conditions of employment which are not specified in that direction. The Direction also does not change an employer’s obligations to comply with matters including, but not limited to, the requirement to pay wages and all laws relating to the employment relationship.
Q: How long can these Directions last?
A4: To give any of the abovementioned directions, the employer must be entitled to receive JobKeeper Payments for the employee for the period of the direction. The temporary changes to the Act remain in force until 28 September 2020.
Q5: I have issued a JobKeeper Enabling Direction to an employee to reduce their ordinary hours of work. That employee now wants to work somewhere else while they are stood down. Can the employee work somewhere else while under the Direction?
A5: Yes the employee may request to engage in reasonable secondary employment while they are under the Direction of reduced ordinary hours. The employee may also request formal training or professional development. As the employer, Members must consider the employee’s request and not unreasonably refuse the request.
Q6: Are there any other agreements that I can make with my employee under the JobKeeper Enabling Direction?
A6: Yes, an employer can enter into an agreement with an employee about either:
- The days or times when the employee is to perform work; or
- The employee taking annual leave, including at half pay.
Members should note that they may request an employee to adjust the days or times they perform work and the employee must consider the request and not unreasonably refuse it. The agreement cannot result in the employee having a reduced number of hours of work when compared to their ordinary hours of work.
Members can request that their employees agree to take paid annual leave, so long as that agreement does not result in the employee having a balance of less than 2 weeks annual leave. Again, the employee must consider the request and not unreasonably refuse the request. Payment for the leave is based on the rate of pay that applied before the JobKeeper legislation operated.
Q7: Where can I find out more about the JobKeeper Enabling Directions?
5. REMINDER – RECENT MODERN AWARD CHANGES
On 8 April 2020 the Fair Work Commission handed down a Decision to temporarily vary a number of Modern Awards, including the:
- Social, Community, Home Care and Disability Services Industry Award 2010
- Aged Care Award 2010
- Nurses Award 2010
- Health Professionals and Support Services Award 2010.
These variations provide:
- Up to 2 weeks of unpaid leave: for employees who are required by government or medical authorities or on the advice of a medical practitioner to self-isolate and are consequently prevented from working, or are otherwise prevented from working by measures taken by government or medical authorities in response to the COVID-19 pandemic. The leave must start before 30 June 2020 but can end after that date. Employees must notify their employer that they wish to take this leave and provide evidence if required by the employer to do so.
- Annual leave at half pay: employees may request to take their annual leave at half pay (instead of at full pay) to give them more annual leave. If granted there must be a written record of this taking place. The annual leave must start before 30 June 2020 but can end after that date.
The provisions are effective from the first full pay period on or after 8 April 2020 and cease on 30 June 2020.
Members are advised to familiarise themselves with the new provisions and to take reasonable steps to inform staff of the changes to the Modern Award relevant to their employment.
6. TEMPORARY CHANGES TO NSW LONG SERVICE LEAVE PROVISIONS
On 25 March 2020 temporary changes to the Long Service Leave Act 1955 (NSW) (LSL Act) came into effect. The changes are as follows:
- By agreement with their employer, an employee may take long service leave (LSL) in advance of the employee completing 10 years’ service with the employer. The changes to the LSL Act allow the employee to take periods of LSL that are less than one month in length (prior to amendment the LSL Act only allowed for an employee to take a minimum of one month of LSL leave in this situation);
- By agreement with the employee, an employer can give an employee less than one month’s notice to take LSL (prior to the amendment at least one month’s notice was required).
The benefit of these new measures is that they enable employers to respond to changing conditions by allowing LSL to be taken with little notice, and also to allow LSL to be taken in a manner to supplement other varied working arrangements (for example, in periods of one or two days in a week). These new flexible arrangements will be available until at least 25 September 2020.
7. LASA GUIDE ON MANAGING VULNERABLE EMPLOYEES
LASA has developed a short guide on Managing Vulnerable Employees to assist Members. If your organisation currently employs a vulnerable employee it is important to take appropriate steps to keep them safe in the workplace.
The Australian Health Protection Principal Committee (AHPPC) has identified particular categories of employees who are considered to be at a higher risk of serious illness if they are infected with COVID-19. The categories of vulnerable employees are:
- Aboriginal and Torres Strait Islander people 50 years and older with one or more chronic medical conditions
- people 65 years and older with chronic medical conditions
- people 70 years and older
- people with compromised immune systems.
8. TEMPORARY WORKING VISA CHANGES
The Australian Government has made temporary changes to working visa conditions to assist employers during these difficult times. Some of these changes are as follows:
Student Visa Holders
Certain student visa holders can work for more than 40 hours per fortnight to support the supply of essential goods and services for Australians if they are employed in the nursing sector or employed in the aged care sector. In accordance with information from the Department of Home Affairs, all aged care Approved Providers or Commonwealth funded aged care service providers that have been issued with a RACS ID or a NAPS ID have been given access to the temporary relaxation of working hours for student visa holders.
These aged care providers should refer to the correspondence provided to them by the Department of Health for further details. These measures only apply to existing workers in their existing roles and are temporary in nature. The Government has not given an end date for these changes but has said that they will give reasonable notice to aged care employers when they intend to revert back to normal conditions.
Working Holiday Makers in Critical Sectors
To support the critical sectors including, aged care, some limited flexibility will be provided. Specifically, working holiday makers who are working in these critical sectors will be exempt from the six month work limitation with the one employer and eligible for a further visa to keep working in these critical sectors if their current visa is due to expire in the next six months. Further information is available here.
9. MENTAL HEALTH IN THE WORKPLACE
COVID-19 is increasing pressure on the mental health of employees. There will be significant short and long term benefits for Members who take a proactive approach to reducing psychological risks to their employees, which is part of any employer’s WHS responsibility.
Make sure your employees know how to access the Employee Assistance Program and any organisations that can support them, such as Beyond Blue. Advice to employers on how to take a proactive approach is available from Safe Work Australia and SafeWork NSW.