Fay Calderone, Hall & Wilcox
Fay Calderone, Hall & Wilcox

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A Fair Work Commission full bench decision to vary three health sector modern awards to include paid pandemic leave "has come completely out of left field", says a workplace lawyer.

Despite opposition from employer groups, the aged care, health professionals and nurses awards have been varied for three months to enable workers, including "regular and systematic" casuals, to take up to two weeks' paid leave every time they self-isolate due to COVID-19 symptoms or coming into contact with a confirmed case.

Employees covered by enterprise agreements, however, do not have access to the leave, and many aged care providers do have these in place to provide more flexibility to their workforce than is available under the awards, Hall & Wilcox partner Fay Calderone tells HR Daily.

The initial offering of unpaid pandemic leave ensured employees didn't suffer adverse consequences for taking time off, but because of the precarious and generally low-paid nature of roles in these sectors, in reality, employees could still be tempted to attend work while sick, says Calderone.

Given the catastrophic impact of outbreaks in the sector, the decision is necessary, but it comes at a great cost to employers.

The FWC decision "has come completely out of left field. The sector is funded to provide specific services, and funding is allocated for specific purposes. There will be financial challenges for the sector arising from this decision and trying to reconcile where the funds are going to come from.

"The sector is appealing to government to assist with funding to cover the cost and it seems reasonable that they will be supported given significant extra costs associated with these infection control measures and the burden to the community and health system if outbreaks continue."

There's also a significant administrative burden, she adds. Conditions attached to the leave will require employers to ensure their internal processes align.

For example, employees must exhaust paid personal leave entitlements before accessing paid pandemic leave; they must provide a medical certificate where self-isolation results from the advice of a medial practitioner (as opposed to government medical authority or the employer); and workers' compensation applies if a worker tests positive to COVID-19 and the paid pandemic leave ceases.

"There needs to be internal procedures in place that basically administer the requirements and ensure that they are administered accurately," Calderone says.

"The other thing is that organisations will need to have a communications process with their workforce so that there is an understanding about when it would apply, who it will apply to, and how it operates, and equally what to do and what not to do. There needs to be a lot of trust around this.

"That financial burden is there, and communication and trust are the best approach to ensure that it's not abused."

The ACTU has welcomed the award variation but called for it to extend to casuals with irregular hours, as well as workers in other industries. "The problem of workers having no leave goes beyond the aged care sector," says secretary Sally McManus.

But it's unclear whether paid pandemic leave will be introduced in other sectors, says Calderone.

Spike in cases not solely a Victorian issue

In its submission to the FWC, the Australian Chamber of Commerce and Industry (ACCI) argued that modern awards operate in a national system, while more than 90% of active cases are currently located in Victoria.

The bench found, however, that "it cannot be assumed that the current outbreak will remain confined to Victoria", and that section 154 of the Fair Work Act prohibits establishing a paid pandemic leave entitlement in Victoria only.

"This is not a Victorian-centric issue. Yes, at the moment, the outbreak is in Victoria but all government officials across the country and all health officers across the country are telling everyone to be on high alert. This is trying to put a fence at the top of the hill rather than an ambulance at the bottom," says Calderone.

Health Sector Awards – Pandemic Leave [2020] FWCFB 3940 (27 July 2020)

Submission by the Australian Chamber of Commerce and Industry

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