The Fair Work Commission finalises Pandemic Leave starting 8/4/20!​

Awards have changed to allow workers the right to two weeks of unpaid ‘pandemic leave’.  

The Fair Work Commission is currently working on finalising changes to 99 awards most impacted by Covid to enable employers and workers to better cope with the impacts of COVID-19.  This includes health, airlines, food services, education and retail awards.

Last month, they made some minor changes to the ClerksHospitality and Restaurant awards.  The FWC considers there are less impacts to industries such as construction, maritime services and mining, are therefore excluded for now.

There are two main variations: 

  • Two weeks unpaid “pandemic leave”

Pandemic leave can be taken by an employee who is asked to self-isolate for medical reasons or is otherwise given a directive to stay home by government or medical authorities. However, it does not cover those caring for a COVID-19 patient. Employees taking pandemic leave can still receive the JobKeeper wage subsidy. 

The employee must give notice “as soon as practicable” and can only utilise it once. The employer can require the employee to give evidence “that would satisfy a reasonable person” that their leave is valid.

Employees do not need to exhaust other leave options, such as annual or sick leave, in order to take pandemic leave.  Leave must start prior to 30 June 2020.

  • Allowing employees to take their annual leave at half pay.

Under Schedule X, employees and employers can now agree to taking annual leave at half pay, thus doubling their time off.  For example, if someone has one week of annual leave accrued, they can take two weeks of leave while only receiving one week’s pay over that period. Only one week of accrued leave would be deducted. This must be by agreement between the employer and employee. The employer cannot force an employee to do so.


Changes to Clerks, Restaurant and Hospitality awards

There are three major changes to these awards, designed to provide more flexibility for employers and employees during the pandemic. These changes are also temporary and will be reviewed on 30 June 2020.   Greater flexibility has been created in:

1.Greater flexibility in job roles and duties

“Employers can require their employees to do “any task or skill they have the competency for”, so long as it is safe to do so, even if this task isn’t usually part of their role.  If the task involves an employee working at a higher classification then the employee needs to be paid accordingly.

Under the Restaurant and Hospitality Awards if they work under two hours at the higher classification, they should be paid for the time they worked. If they work more than two hours, they must be paid at a higher rate for their entire shift, even if they resume their usual task for the rest of the time.

2. Work hours

Restaurant and Hospitality awards, employers can reduce the number of hours an employee works. The minimum number of hours for full-time staff is now 22.8 hours per week.  Employers only have to honour 60 per cent of part-time staff’s guaranteed hours. Employers need to discuss the changes with their employees and provide as much notice as they can. If an employee is part of a union, the union must be informed of these changes.

Clerks award is more complex! “Employers can temporarily reduce their permanent employees’ hours of work to not less than 75% of their full-time ordinary hours or agreed part-time hours immediately prior to the reduction. This can be for the whole business or a section of the business.

“If an employer wants to reduce their employees’ hours, the employees will need to vote in favour of the reduction of hours. At least 75% of the full-time and part-time employees in the business or section of the business must approve the temporary reduction.”

Accrued leave under all three awards will continue as if they were working their ordinary (pre-reduction) hours. 

3. Flexible leave

Under the Clerks award: Employers have some power to instruct employees to take annual leave. Employers must provide one weeks’ notice and employees cannot be asked to take annual leave if it would mean the employee has less than two weeks annual leave accrued.  The award changes urge employers to “consider the employee’s personal situation” before asking them to do so.

Under the Restaurant and Hospitality Award, workers must be given 24 hours’ notice.

The Fair Work Ombudsman website is a good resource for further information.