The Fair Work Commission (FWC) has inserted paid pandemic leave provision into three modern awards including the Nurses Award 2010, Aged Care Award 2010 and the Health Professionals and Support Services Award 2020. This provides paid pandemic leave only for RACF employees who are covered by these Awards.

Background

Members will recall that on 8 July 2020, the FWC decided against the unions’ Applications for paid pandemic leave and special leave provisions to be inserted into modern awards covering the aged care sector. LASA and ACSA were instrumental in convincing the FWC at that time that the paid provisions were not appropriate given the significant financial impact for employers in the aged care industry.

While the FWC decided against the unions’ Applications, it was highlighted in the Decision that the matter would remain open and it could be relisted on the request of any party at short notice or on its own initiative. The FWC advised in their Decision that the Commission may be prepared to grant the application if evidence emerged that that there was an elevated risk of health and care workers being infected by COVID-19 or having to self-isolate.

FWC Relists the Matter

On 22 July 2020, the FWC issued a Statement which highlighted the change in circumstances regarding COVID-19 since their Decision on 8 July 2020. The Statement covered the significant increase of COVID-19 cases and deaths as well as the number of aged care facilities and their staff and residents which have been affected by the virus since the aforementioned Decision.

In light of the significant number of aged care facilities impacted by the increase in cases, the FWC had the preliminary view that it was justifiable for them to grant paid pandemic provision in the Aged Care Award 2010. LASA and ACSA filed a joint submission with the assistance of ABLA and with the support of ACCI, ABI and the NSW Business Chamber. This submission can be found through this link. This submission opposed the insertion of paid pandemic leave into the Aged Care Award.

The ACTU, HSU and ANMF subsequently made submissions on the basis that if the paid pandemic leave entitlement is to be included in the Aged Care Award 2010 then it should also be included in the Nurses Award 2010 and the Health Professionals and Support Services Award 2010.

As a result of these union submissions, late on 24 July 2020 the FWC issued another Statement which indicated that they were also of the view that the paid pandemic leave provisions should be inserted into those two additional modern awards. LASA and ACSA filed a further submission in opposition of this preliminary view and this can be found through this link.

Decision

Late on 27 July 2020, the FWC handed down its Decision to insert paid pandemic leave provisions into the Aged Care Award 2010, Nurses Award 2010 and the Health Professionals and Support Services Award 2020 for RACF employees only.

Important Points in the Decision
  • This is a temporary entitlement under these modern awards which is in operation from Wednesday 29 July 2020 to Thursday 29 October 2020. The FWC has noted that this may be extended on application.
  • These provisions do not apply to employees who are currently covered by an enterprise agreement that was made prior to the Decision being made on 27 July 2020. The only exception is if the enterprise agreement has a clause that states that the agreement will incorporate modern award provisions including new provisions to the modern award.
  • The provisions only apply to residential aged care employees. The provisions do not apply to home care employees.
  • The Australian Government has not committed to funding the payment of Paid Pandemic Leave to eligible employees. LASA continues to advocate to Government on behalf of Members in relation to the funding support required to implement this new provision.
  • Providers in the declared hot spots in Victoria are encouraged to review the details of upcoming funding related to the Guiding Principles once they become available. LASA will keep these Members updated separately on this matter.
The New Provisions

The new provisions can be found in Schedule Y – Industry Specific Measures During the COVID-19 Pandemic of the Aged Care Award 2010, the Health Professionals and Support Services Award 2020 and the Nurses Award 2010. Members are advised to familiarise themselves with these provisions if they apply to your employees.

FAQs on Paid Pandemic Leave

1. When is a residential aged care employee entitled to take paid pandemic leave?

Employees (full-time, part-time and regular and systematic casual employees) are entitled to take up to 2 weeks of paid pandemic leave if they are:

  1. Required by government or medical authorities to self isolate or quarantine;
  2. Required by their employer to self isolate or quarantine;
  3. Required on the advice of a medical practitioner to self isolate or quarantine because they are displaying symptoms of COVID-19 or have come into contact with a person suspected of having contracted COVID-19;
  4. In isolation or quarantine while waiting for the results of a COVID-19 test; or
  5. Complying with measures taken by government or medical authorities in response to the COVID-19 pandemic.

Even if they meet the above criteria, employees are not eligible for paid pandemic leave:

  • If they have not exhausted their accrued paid personal/carer’s leave and they are unwell. They must exhaust their paid personal/carer’s leave first before becoming eligible for paid pandemic leave.
  • If they become entitled to workers compensation benefits because they have contracted COVID-19 at work.
  • Unless they have undertaken a COVID-19 test in connection with the applicable circumstance or undertake the COVID-19 test at the earliest opportunity.

They can take up to 2 weeks of paid pandemic leave for each occasion they are prevented from coming to work for one of the reasons listed above. This means that it is possible for an employee to be entitled to more than 2 weeks of paid pandemic leave in a 12 month period.

2. Are casual employees in residential aged care facilities entitled to paid pandemic leave?

Casual employees who have been engaged on a regular and systematic basis are entitled to take paid pandemic leave if they are otherwise eligible for this type of leave.

These casual employees will be paid for paid pandemic leave based on the average weekly pay they received in the previous 6 weeks, or where the employee has been employed for less than 6 weeks, for the duration of their employment with you.

3. My business is a home care service provider and we only employ staff who provide home care to clients. Do my employees get paid pandemic leave?

No, your employees are not entitled to paid pandemic leave.

The FWC did not insert the paid pandemic leave provisions into the Social, Community, Home Care and Disability Services Industry Award 2010 so it does not apply to home care employees who are covered by that modern award.

While there are paid pandemic leave provisions under Health Professionals and Support Services Award 2020 and the Nurses Award 2010, they only apply to employees who are employed in residential aged care facilities. This restriction is in Schedule Y clauses Y.2 and Y.3 of those two modern awards.

The paid pandemic leave provisions therefore do not apply to employees under those modern awards who work for a home care service.

4. My organisation operates under an enterprise agreement, do these changes impact my staff?

Generally speaking, no. These changes will not affect your staff if they are engaged under an enterprise agreement (EA) that was made prior to the Decision being made by the FWC on 27 July 2020. The FWC has not automatically put the paid pandemic leave provisions into your EA.

The only exception to this is if there is a clause in the EA which states that the EA will incorporate the provisions of a modern award that would include these new provisions. In this case, the paid pandemic leave provisions will also apply to those employees covered by the EA.

The majority of EAs would not have such a clause however, it is advisable to be sure that your EA does not have one before proceeding.

5. I’m a residential aged care provider and we are currently bargaining for a new enterprise agreement to cover our employees (aged care employees, nursing classifications and health professionals). How do these new paid pandemic leave provisions impact on the bargaining?

For future EAs that are yet to be made (i.e. not yet voted up by the majority of relevant employees) while the paid pandemic leave provisions remain in the three modern awards, the provisions will be taken into account by the FWC when applying the Better Off Overall Test (‘BOOT’) to ensure that employees are better off overall under the EA compared to the relevant modern awards.

The BOOT is done based on the provisions in the applicable modern awards at the time the EA is made (i.e. when the EA is voted up by the majority of relevant employees).

In order for an EA to pass the BOOT it will most likely need to have paid pandemic leave provisions (for at least the time span under the modern awards) so that the FWC can be assured that employees are better off overall under the EA.

6. Why aren’t home care employees covered?

The FWC agreed with the ACTU’s submission to only provide paid pandemic leave to employees in residential aged care.

LASA opposed paid pandemic leave provisions being inserted into the four modern awards utilised in the aged care sector on the basis that there was no additional funding provided to support providers to pay for this new entitlement.

LASA submitted to the FWC that a large number of providers in the aged care sector were unable to afford to pay such entitlements due to their financial position.

7. How do employees access their entitlement to paid pandemic leave?

Firstly, eligible employees must give their employer notice that they need to take the leave and of the reason they require the leave as soon as practicable (which may be a time after the leave has started).

An employee who has been required on the advice of a medical practitioner to self isolate can be required by an employer to produce a medical certificate.

Members should tell their employees as soon as practicable that they will require a medical certificate if advised to self-isolate by a medical practitioner.

An employee who is:

  • Required by government or medical authorities to self isolate or quarantine;
  • In isolation or quarantine while waiting for the results of a COVID-19 test; or
  • Complying with measures taken by government or medical authorities in response to the COVID-19 pandemic can be required by their employer to provide evidence that would satisfy a reasonable person that the leave is taken for one of the above reasons. It is advisable that Members tell their employees as soon as practicable that they will need to produce this evidence to support their application for paid pandemic leave.

8. Will the Government be funding this new paid leave entitlement?

The Government has not committed to funding the payment of Paid Pandemic Leave to eligible employees. LASA continues to advocate to Government on behalf of Members in relation to the funding support required to implement this new provision.

9. Does an employee need to exhaust all of their available paid leave entitlements before accessing this leave?

If an employee is unable to attend work because they are unwell, then they should access their accrued paid personal/carer’s leave (sick leave) entitlement. The employee cannot utilise paid pandemic leave in a situation where are able to access paid personal/carer’s leave.

If an employee is not unwell but are prevented from working (including working from home) due to COVID-19 they are not entitled to access paid personal/carer’s leave as they are not ill or injured.

Employees are not required to exhaust annual leave or long service leave before applying for paid pandemic leave should they meet the requirements of the provisions.

Need Assistance?

Contact the Employment Relations team on 1300 111 636 or employmentrelations@lasa.asn.au if you would like further information on the paid pandemic leave provisions.