Health Sector Awards – Pandemic Leave
[2020] FWCFB 7059
•24 DECEMBER 2020
| [2020] FWCFB 7059 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.157 – FWC may vary etc. modern awards if necessary to achieve modern awards objective
Health Sector Awards – Pandemic Leave
(AM2020/13)
VICE PRESIDENT HATCHER | SYDNEY, 24 DECEMBER 2020 |
Applications to vary Health sector awards – pandemic leave – 27 July 2020 decision determined paid pandemic leave entitlement applicable to employees in aged care sector due to current elevated risk of infection and self-isolation requirements in the aged care sector – evidence SCHADS and Ambulance Award covered employees at some risk of COVID-19 exposure and infection during second wave outbreak – risk not as great as for aged care sector– ensure aged care employees had no financial incentive not to report COVID-19-like symptoms or contact with a suspected COVID-19 case – some evidence elevated risk manifested during second wave of infection in Victoria– a disproportionately high number of NEPT workers self-isolated, many on multiple occasions – large proportion likely to be casual employees – 201 NDIS workers and 154 participants were infected –these a fraction of numbers in aged care – currently no evidence these sectors’ capacity to provide essential services to client bases threatened by COVID-19 pandemic – not satisfied a paid pandemic leave entitlement in the SCHADS or Ambulance awards necessary to meet modern awards objective – liberty to apply – matter stood over.
Introduction
[1] The background to this matter was explained in a statement we issued on 17 August 2020 1 (August statement). In summary, in a decision delivered on 8 July 20202 (8 July decision), we declined to award a new entitlement for paid pandemic leave in nine awards in the health and social service sectors, including the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award) and the Ambulance and Patient Transport Industry Award 2020 (Ambulance Award). In a further decision delivered on 27 July 20203 (27 July decision), we determined to establish an entitlement for paid pandemic leave for employees covered by the Aged Care Award 2010 (Aged Care Award), and for employees covered by the Nurses Award 2010 and the Health Professionals and Support Services Award 2020 who are employed by residential aged care providers or are required to work in residential aged care facilities. In that decision, we indicated that we would monitor developments connected with the COVID-19 pandemic and contemplated the possibility of the extension of the entitlement to other awards. The following submissions were subsequently filed which sought an extension of the paid pandemic leave entitlement to other categories of employees:
• on 31 July 2020, the Australian Municipal, Administrative, Clerical and Services Union (ASU) filed submissions seeking that the entitlement be applied to employees covered by the Schedule B classifications (Social and Community Services employees) and Schedule C classifications (Crisis Accommodation employees) of the SCHADS Award;
• on 3 August 2020, the Health Services Union (HSU) filed submissions in which it likewise contended that the SCHADS Award should be varied to provide paid pandemic leave for employees in Schedule B and C classifications, and also submitted that the entitlement should apply to employees in Schedule E classifications (Home Care employees) in that award; and
• on 30 July 2020, the Victorian Ambulance Union Incorporated (VAU Inc), which acted as the representative of Mr Alan Stokes in the proceedings, filed a submission on his behalf seeking that the Commission introduce a paid pandemic leave entitlement into the Ambulance Award.
[2] After considering the submissions made by the ASU, the HSU and Mr Stokes, and the submissions of a number of organisations in response (which are summarised in the August statement and not repeated here), we expressed the following provisional view in the August statement:
“[11] Our provisional view is that the material currently before us is not sufficient to demonstrate that it is necessary to vary the SCHADS Award or the Ambulance Award in the manner proposed. The following matters are germane to the provisional conclusion:
(1) There is insufficient data concerning the extent of COVID-19 infection in disability, aged home care, crisis accommodation and NEPT ambulance sectors.
(2) The material before us is not indicative of “a demonstrated threat to the resilience” of the systems for care in these sectors which would justify a paid pandemic leave entitlement for casual employees.
(3) On 5 August 2020, the Australian Government announced a “Pandemic Leave Disaster Payment for Victoria”, under which a $1,500 will be made to adult employees residing in Victoria who have been instructed by the DHSS to self-isolate or quarantine and who have no income from paid work, including sick leave entitlements. The self-isolation/quarantine instruction must arise because the employee has COVID-19, has been in close contact with a person who has COVID-19, or cares for a child who has COVID-19 or has been in close contact with a person who has COVID-19. It is payable for each occasion of self-isolation/quarantine, and is claimable by the employee directly from the Australian Government. There is no material before us as to the efficacy of the payment scheme, the extent of its utilisation to date and the extent to which it might operate as an acceptable substitute for any award paid pandemic leave entitlement.”
[3] At a further directions hearing conducted on 19 August 2020, the ASU, the HSU and the United Worker’s Union (UWU) together with the Australian Council of Trade Unions (ACTU), and Mr Stokes, indicated that they desired the opportunity to adduce further evidence at a hearing before us to persuade us that the SCHADS Award and the Ambulance Award should be varied to include a paid pandemic leave entitlement. Directions were accordingly made for the filing of evidence and submissions by interested parties, and we conducted a hearing on 22 October 2020.
Case advanced by the ACTU and affiliated unions
[4] The ACTU, on its own behalf and on behalf of the HSU, the ASU and the UWU, submitted that the SCHADS Award (in respect of employees covered by classification in Schedules B, C and E) and the Ambulance Award should be varied to provide for a paid pandemic leave entitlement. It relied upon its earlier evidence and submissions in the proceedings, and made additional submissions to address the issues identified in the August statement in order to persuade us to depart from the provisional view expressed in that statement. Its submissions proceeded upon the considerations identified as most relevant in the 8 July decision and the 27 July decision, and the ACTU accepted that it was necessary for the Commission to balance a range of considerations in order to determine whether the introduction of paid pandemic leave is necessary to meet the modern awards objective. The ACTU submitted:
• it is now known that contracting COVID-19 may have long-term effects, which is relevant to justifying the cost of introducing paid pandemic leave as a preventative public health measure;
• although the standard of the available data is not satisfactory, the evidence is consistent with the proposition that workers covered by the SCHADS Award are at an elevated risk of contracting COVID-19 or transmitting the virus or being required to self-isolate;
• the NDIS workforce, which overlaps with Schedule B of the SCHADS Award and may include employees covered by Schedule E, has as at 18 September 2020, reported 201 cases of COVID-19, with no more than 4 outside of Victoria;
• at the highest point of active infection in the NDIS in Victoria, there were 126 active cases (including disability support workers and participants) compared to the 125 cases in Australian Government subsidised residential aged care at the time the Full Bench expressed the provisional view on 22 July 2020 that the Aged Care Award should be varied to provide for a paid pandemic leave entitlement; 4
• the NDIS infection figures do not include disability support workers outside the NDIS, and are unlikely to overlap with the 56 home carers known to have been infected as at 24 August 2020, who would likely be covered by Schedule E of the SCHADS Award;
• for workers in the ANZSIC classification codes 8609 and 8790, which are most relevant to work performed under the SCHADS Award, there were 203 notifications of infection in the period 28 July to 6 August 2020, and it is likely that would have led to additional persons being required to self-isolate or quarantine;
• the level of risk of contracting COVID-19 involved for employees under the SCHADS Award was elevated, was comparable to that of workers in the ambulance industry and was higher than for workers in hospitals;
• a finding should be made that this level of risk had manifested itself in Victoria;
• while a practical, imminent threat to the system of care cannot be demonstrated, there is clearly a theoretical threat, as demonstrated by the “Worker Mobility Reduction Payment” established by the Victorian and Commonwealth Governments to improve the resilience of the workforce in the face of the COVID-19 pandemic;
• many of the features of the funding response to the aged care sector are equally applicable to the provision of home care for the aged;
• a survey conducted by the Commission in 2019 indicated that 40.2% of the employees covered by the SCHADS Award were casual employees (with 18.5% permanent full-time and 36% permanent part-time), which indicates vulnerability to income security;
• Government payment measures introduced as a response to the COVID-19 pandemic are not a satisfactory substitute because of the limitation in the circumstances in which they are payable and the $1,500 amount payable is inadequate; and
• it was accepted in the 8 July decision that many workers covered by the SCHADS Award are low paid, and the level of financial distress experienced by disability support workers at the present time, and its flow-on effects, demonstrate the merit of income security during quarantine.
[5] The ACTU and its affiliated unions adduced additional expert evidence from two witnesses: Professor Raina MacIntyre of the University of New South Wales, and Professor Anne Kavanagh of the University of Melbourne.
Professor Raina MacIntyre
[6] Professor MacIntyre is a public health physician, epidemiologist and academic, and holds the positions of Head of the Biosecurity Research Program and Professor of Global Biosecurity at the Kirby Institute for Infection and Immunity at the University of New South Wales. As recorded in the July decision, she gave evidence at an earlier stage of these proceedings concerning the COVID-19 pandemic, in particular in relation to issues affecting health and community and related services sectors and measures that might be taken to ameliorate known foreseeable risks for workers in those sectors. Professor MacIntyre made a further report at the request of the ACTU which requested her expert opinion about the following matters:
• the level and mechanism of risk to workers, or categories of workers, performing work covered by the SCHADS Award, being the risk of contracting or spreading COVID-19 or being required to self-isolate or quarantine in connection with the COVID-19 infection of another person;
• any estimates, or range of estimates, of relative risk or comparative risk that may be made comparing workers, or categories of workers, performing work covered by the SCHADS Award and other populations (either by location or any other informative criterion); and
• any new knowledge or research since her last report which she considered would contribute to the Commission’s understanding of COVID-19 risks for employees performing work, or categories of work, covered by the SCHADS Award.
[7] In relation to the COVID-19 pandemic generally, Professor MacIntyre said in her report that:
• evidence of airborne transmission of the SARS-COV-2 virus had grown, with one study finding a plausibility score of 8 out of 9 that the virus is airborne;
• the spread of the virus up multiple floors of buildings through faecal aerosols has been documented;
• in closed, indoor environments, aerosols accumulate over time through simply breathing and speaking;
• the role of building ventilation in indoor environments is critical to reducing risk, and is known to be poor in many households and institutional settings;
• one outbreak in an aged care facility in the Netherlands resulted in transmission to 80% of residents and 50% of staff, which appeared to be due to aerosol transmission to areas not contiguous to where infected residents were located; and
• a new study showed that in a hospital setting, the virus was found in viable form in the air in a hospital room where a patient was located, in the absence of any aerosol generating procedures and up to 4.8 metres from the patient.
[8] Professor MacIntyre said in her report that there was no published data on occupational risk of COVID-19 in Australia. The Department of Health and Human Services Victoria (DHHS) released data showing that aged care workers are at highest risk, followed by health workers. Studies in the United States showed that:
• 52% of workers in personal care and service industries and 32% in community and social services may be exposed to COVID-19 over a one month period, and 30% of personal care and service workers were exposed weekly; and
• a high rate of chronic illness of workers exists in the home health aide occupation and nursing home/rehabilitation industry compared to other essential workers, placing them at risk of serious complications of COVID-19.
[9] Professor MacIntyre also referred to evidence about the long term and non-respiratory complications of the virus.
[10] In response to a specific request made by the ACTU for her to analyse data compiled by the Victorian WorkCover Authority concerning notifications of workers with COVID-19 who had attended the workplace during the infectious period, as well as data compiled from information publicly released by the Minister for the National Disability Insurance Scheme (NDIS) and data on ANZSIC industry groups sourced from the ABS Labour Force Detailed Quarterly E06 and 2016 Census data, Professor MacIntyre stated the following conclusions:
• DHHS data showed that, during the second wave in Victoria, as of 23 August 2020, there were 2,692 cases of COVID-19 in aged care and health workers, of which 42% were in aged care and disability workers and 32% in hospital workers;
• NDIS data showed 195 cases of COVID-19 in NDIS workers and 136 in NDIS participants, with these being contained in the 674 cases in aged care and disability workers shown by the DHHS data; and
• this was to be compared to 497 cases in hospital nurses and 49 cases in doctors after 1 July 2020.
[11] Professor MacIntyre’s analysis of the Victorian WorkCover notification data showed the following infection rates for selected industry groups:
| Industry group | Infection rate |
| K6221 Banking | 0.025% |
| G4271 Pharmaceutical retail | 0.04% |
| E 323 Building installation services | 0.1% |
| Q8401 Hospitals | 0.11% |
| 802 Primary and secondary education | 0.12% |
| Q8511 General Practice | 0.13% |
| 411 Supermarket and grocery | 0.13% |
| Q8790 + Q8609 – Other social/other aged care | 0.15% |
| Q8591 Ambulance | 0.18% |
| E301 – Residential building construction | 0.2% |
| H440 – Accommodation | 0.2% |
| Q8710 Childcare | 0.22% |
| F3712 Clothing wholesaling | 0.24% |
| Q8601 Aged care residential | 1.2% |
[12] Professor MacIntyre said that during periods of community transmission, workers in a large range of customer or client facing roles who may deal with many people or with close personal contact are at increased risk of infection. The NDIS data showed that there were more cases in NDIS workers than participants. Professor MacIntyre concluded that, based on the analysis of WorkCover notifications in Victoria, workers in the ANZSIC categories Q8790 (Other Social Assistance Services) and Q8609 (Other Residential Care Services) have a “moderate risk” of COVID-19, with a higher recorded notification rate of infections than for general practitioners. Professor MacIntyre said that there were many limitations to the available data as well as inconsistencies in the data from different sources, with the WorkCover notification data being not necessarily reflective of the actual incidence of infection by industry group. Professor MacIntyre stated the following overall conclusions:
“Despite these limitations, based on comparative risk, workers in in Q8790 + Q8609 have a moderately elevated risk of COVID-19, supported by a US study which shows workers in similar categories are among the highest risk for infection. The close, personal nature of the work, as well as the indoor environments which may not be well ventilated, pose a risk of transmission of SARS-COV-2 during outbreak periods.
We do not have demographic data on these workers in Australia, but a US study also shows a high risk of chronic health conditions in workers in similar industries. If the profile is similar in Australia, these workers would be at higher risk of serious complications from COVID-19.”
[13] Professor MacIntyre was not required for cross-examination by any party.
Professor Anne Kavanagh
[14] Professor Kavanagh is Chair of Disability and Health and Head of the Disability and Health Unit in the Centre of Health Equity in the Melbourne School of Population and Global Health at the University of Melbourne, and is also the Co-Director and Lead Investigator at the Centre of Research Excellence in Disability and Health (CRE-DH) and the Academic Director of the Melbourne Disability Institute at the University of Melbourne. She was appointed to the Australian Government Department of Health Advisory Committee for the COVID-19 Response for People with Disability (Advisory Committee) in March 2020, and was also appointed to the Disability Advisory Committee for the National Disability Data Asset in May 2020. Professor Kavanagh is also a member of the advisory group for the ABS Survey of Disability, Ageing and Carers. Her research focuses on how social determinants such as employment, housing, poverty and education influence the health of persons with disability, and also on disability services including services funded through the NDIS, employment services and the disability support workforce.
[15] Professor Kavanagh is the author of a statement “People with Disability and COVID-19” which was published by the CRE-DH on 16 March 2020. This statement, which was endorsed by leading health and disability researchers, called for urgent action by State and Federal Governments to develop a targeted response to COVID-19 for people with disability, their families and the disability service sector. One of the key recommendations in the statement was that the National Disability Insurance Authority financially compensate casual and self-employed disability workers who may need to self-isolate to avoid them coming to work if sick. Professor Kavanagh subsequently published a number of statements and academic and popular articles concerning the proper response to the COVID-19 pandemic for the disability sector. Profess Kavanagh was first author of a report dated 31 July 2020 and entitled “Disability support workers: The forgotten workforce in COVID-19” (Report), which was based on the results of a survey of 357 disability support workers conducted in late May and June 2020 and recommended, among other things, that disability support workers be financially compensated if they were sick and could not attend work.
[16] Professor Kavanagh said in her report commissioned by the ACTU that it was difficult to find accurate numbers of disability support workers who had contracted COVID-19 infections in Australia. On 19 August 2020, the Minister for the NDIS announced that the Commonwealth would commence providing data on infection rates of COVID-19 amongst NDIS participants and workers. As at 18 September 2020, there were 355 case notifications of COVID-19, comprised of 201 workers and 154 participants. These numbers were based on reports from NDIS providers, and did not include people with disability with self-managed NDIS plans and probably their disability support workers, workers supporting NDIS participants in aged care, and in-kind supports and other supports under the jurisdiction of State and Territory governments.
[17] Professor Kavanagh identified that, in respect of residential disability services, COVID-19 outbreaks were reported in the daily media releases of the DHHS from late July, and The Guardian newspaper reported outbreaks in over 30 disability residential services on 6 August 2020. She referred to data reported by the Victorian government from mid-August 2020 concerning the number of active cases amongst disability staff and residents. As at 13 August 2020 as an example, 84 active cases were reported in disability residential accommodation, comprised of 20 residents and 64 staff. Professor Kavanagh said that it was not possible to derive from the publicly reported numbers the total number of residents and workers infected in disability residential settings. In respect of people with disability living in congregate living environments such as Supported Residential Services in Victoria, there had been some reported outbreaks such as at Hambleton House in Albert Park, where 15 of the 28 residents and one of eight staff were reported to have contracted COVID-19. In respect of the risk level amongst the disability support workforce, Professor Kavanagh said that:
• estimating the risk was difficult because there is no population estimate of the size of the workforce;
• disability support workers are at risk of contracting and spreading the virus because they may work with multiple clients across many different settings; and
• the risk of contracting and spreading COVID-19 is likely to vary across the disability support workforce, with the risk being higher amongst those working in congregate environments than those providing support to one to two persons in private homes.
[18] Professor Kavanagh summarised the main results of the Report as follows:
• 31% of disability support workers were over 50 years of age and 7% were over 60 years of age, and thus comparatively more vulnerable to the risk of serious complications from COVID-19;
• 90% of disability support workers were unable to physically distance at work, making transmission between them and those being cared for more likely;
• 53% of disability support workers provide close personal care such as teeth brushing, feeding and toileting;
• 22% of disability support workers reported that they had not had any infection control training;
• disability support workers worked with an average of 6 people with disability and a median of 5, with a range of 0-50;
• 46% of disability support workers worked in private homes in the previous week, of whom 50% worked in one home, 19% in two homes and 31% in three or more homes;
• 57% of disability support workers worked in congregate settings including group residences in the last week, of whom 71% worked in one residence and 30% in two or more residences;
• 16% of disability support workers worked in centre-based activity in the last week;
• 69% worked in a congregate setting (group home, disability enterprise, centre or group activities) in the last week;
• 14% of disability support workers worked for more than one provider and 6% also worked in aged care in the previous week;
• 23% of disability support workers reported symptoms consistent with COVID-19 since February 2020;
• of those who experienced symptoms and needed to take time off work, only 47% were paid for their leave;
• many disability support workers experienced financial hardship during the COVID-19 pandemic, and 15% received JobKeeper and 9% received JobSeeker;
• 35% had shifts cancelled because of fear of infection, and 37% reported working fewer hours because of the pandemic;
• of various indicators of financial stress, 34% of disability support workers reported experiencing at least one of these stressors and 14% reported three or more stressors; and
• those who reported three or more stressors were more likely to report symptoms consistent with mental illness.
[19] Professor Kavanagh concluded that disability support workers were at risk of contracting COVID-19 at work because they were unable to physically distance, over half provided intimate care, they worked with different clients and in different settings, and some residents would have difficulty in understanding and following directions concerning physical distancing, quarantining and self-isolation. Professor Kavanagh expressed the view that all disability support workers should be eligible for paid pandemic leave to protect them and people with disability, and to ensure that such workers are not financially penalised for not going to work when symptomatic or when they needed to quarantine or self-isolate. She said that disability support workers are already financially vulnerable and may be faced with the impossible decision to either attend work or forego income, and this may contribute to them avoiding testing if they are symptomatic.
[20] In her oral evidence in chief, Professor Kavanagh gave the following evidence:
Was there any immediate risk to the resilience of the system for providing care for these workers at the time you made those recommendations?---Can I clarify what you mean by resilience? You mean whether they would be able to continue to provide those services? Is that what you mean?
Whether they would continue to be able to provide the care, yes?---I think that was one of our concerns, that if a large number of support workers needed to be furloughed that there would be - you know, or quarantined or self-isolated - there wouldn't be a sufficient workforce and just like the healthcare workforce, where we've seen some actions by government to immediately mobilise an additional workforce from retired workers, we didn't see that in the disability sector (indistinct) services who had perhaps more capacity and we were concerned that the essential supports would not be continued to people with disabilities if there wasn't immediately the potential to increase the size of that workforce. So that was one of our recommendations, to identify a potential backup workforce.
I think you acknowledge we are at a stage where infections are declining in these settings at the moment but do you stand by those recommendations today?---Definitely - I think they're absolutely relevant still now. Some of things - having said that, some of the things have happened, so some of the recommendations we made back in March in our first and second statement around access to personal protective equipment and those kinds of things have actually happened and so it is - the government did take up a number of those recommendations that we made. 5
[21] Professor Kavanagh also gave the following evidence in cross-examination:
Did the survey respondents say they attended work other than working from home whilst infected with COVID-19?---Well, they weren't infected but they did attend work. Some reported attending work when sick, when they had potential infection; when they had potential symptoms that were consistent with COVID-19. It's also important to remember that early in the pandemic we were only offering testing to people who were considered - had travelled overseas in the initial stages and all contacts of people who travelled overseas. 6
Case advanced by Joshua Gomperts
[22] Mr Joshua Gomperts replaced Mr Alan Stokes as the applicant in respect of the Ambulance Award. It was submitted on his behalf by VAU Inc as follows:
• as at 29 September 2020 there had been 42 paramedics and non-emergency patient transport (NEPT) workers who had tested positive for COVID-19 in Victoria, and some of these confirmed cases were NEPT workers;
• the number of infected persons is clearly higher than the number of WorkCover notifications;
• there has been a clear manifestation of the risk of COVID-19 infections in the ambulance industry;
• apart from the numbers of persons infected, there needs also to be a focus on the nature and source of risk for NEPT workers which gives rise to the need to self-isolate;
• NEPT staff move across the health system and enter and provide services in aged care, hospital and other settings in the course of performing their work, and are accordingly subject to the same risk of infections as other health care workers (HCWs) in these environments;
• there has been a change to the use of personal protective equipment (PPE) in the NEPT sector and an increase in the number of transfers of patients from aged and residential care facilities;
• NEPT staff are in contact with confirmed COVID-19 cases in the course of performing this work, and are at the same level of risk as Ambulance Victoria emergency responders, who are provided with paid special leave in the event that are required to self-isolate;
• the NEPT sector is comprised of a significantly casualised workforce, with between 50% and 85% of the workforce identified as casual employees;
• a significant proportion of the NEPT workforce has had to self-isolate during the pandemic, and it can be inferred that a significant proportion of these were casual employees without leave entitlements;
• it can also be inferred that there have been instances of shifts not being covered as a result of staff being furloughed or required to self-isolate, and this threatens the integrity of the NEPT system;
• this gives rise to the risk that NEPT employees will not report COVID-19 symptoms or contact with a suspected COVID-19 case out of a concern they will be required to self-isolate and thereby lose income; and
• the Victorian Pandemic Leave Disaster Payment of $1,500 and the testing payment of $450 are inadequate substitutes for a paid pandemic leave entitlement; and
• the Commission should be satisfied that it is necessary to vary the Ambulance Award to provide for a paid pandemic leave entitlement in order to meet the modern awards objective.
[23] Mr Gomperts filed a number of statements of evidence in support of his case, which are summarised below. None of his witnesses were required for cross-examination.
Alan Eade
[24] Alan Eade holds the positions of Chief Paramedic Officer, Safer Care Victoria and Adjunct Associate Professor, Department of Paramedicine at Monash University. He prepared a report dated 28 September 2020 concerning various matters arising from the effects of the COVID-19 pandemic on workers in the NEPT industry in Victoria. His report stated, in summary:
• the NEPT sector was concerned with patients who require clinical monitoring or supervision during transport, but do not require a time-critical ambulance response;
• NEPT is most commonly used between hospitals, or between home and hospital, and some aged care patients may also be transported;
• the NEPT sector is principally involved in the movement of patients of varying clinical acuity in a non-emergency/planned manner, but is also used for primary response to low acuity, less urgent clinical cases;
• the NEPT sector is also clearly understood to constitute the surge capacity to support Ambulance Victoria;
• during the COVID-19 response, there had been a considerable augmentation to the use of PPE by NEPT workers as an infection control measure;
• there has also been an increased volume of residential aged care transfers conducted by the NEPT, as well as the use of NEPT to provide safe transport for supported residential services and quarantine and safe accommodation facilities;
• NEPT workers are moving across the health system and are subject to the same risks as HCWs employed in health facilities;
• the latest data on the Victorian HCW COVID-19 data website lists 41 HCW COVID-19 infections under the classifications of paramedics and patient transport officers, but does not currently differentiate between Ambulance Victoria paramedics and patient transport workers employed by NEPT providers;
• the 41 paramedic and patient transport cases were concentrated in the mid-July/August period, which reflects the spread of nursing and aged care/disability cases;
• the Victorian Government has treated NEPT workers as frontline workers, and thus they have access to the Government’s emergency accommodation program for frontline workers which are required to quarantine or self-isolate and cannot safely do so at home;
• the DHHS has not made available any data concerning the number of NEPT employees who have been furloughed or required to self-isolate because of COVID-19 symptoms or contact with an infected person, but one NEPT employer had reported that it had 10 NEPT staff required to self-isolate for 2 weeks or longer, and that 80% of staff have had to be tested and have taken time off until they receive their test results (usually 1-5 days);
• there is no DHHS data on the number of NEPT shifts that have not been covered because of absent workers, but one employer had reported that it had been unable to fulfil contract obligations as a result of more than 400 hours of directed leave and more than 4,500 hours of personal leave taken by NEPT staff;
• the NEPT sector operates a significantly casualised workforce, with between 50% and 85% of the workforce being identified as casual employees;
• there have been WorkCover notifications of infections from at least 3 providers of ambulance services, which means that it is highly likely that this includes NEPT operators; and
• if staff are not sufficiently secure in their employment to continue to make themselves available for work, or cannot work for any reason, then the integrity of the NEPT system is at risk.
[25] In a supplementary report dated 27 October 2020, Mr Eade said, on the basis of information provided to him that Ambulance Victoria had reported 25 cases of its employees contracting COVID-19, that on the balance of probabilities the remaining 16 COVID-19 infections reported under the classifications of paramedics and patient transport officers were NEPT staff.
Joshua Gomperts
[26] Mr Gomperts made a statement of evidence in support of his own case dated 2 October 2020. He said that he is employed by St John Ambulance (Vic) Incorporated as a casual Ambulance Attendant, and is covered by the Ambulance Award. He said that he was responsible for collecting and transporting patients from hospitals, patients’ homes or public spaces. He works about 7-8 shifts per fortnight, for 70-80 hours per week. Mr Gomperts said that he has been attending 1-2 suspected or confirmed COVID-19 cases per shift since the start of the pandemic. In the initial phase of the pandemic, his shifts reduced due to a reduced number of inter-hospital transfers, but his workload significantly increased from mid-June to July 2020.
[27] Mr Gomperts gave evidence that he had been tested four times for COVID-19 as follows:
(1) On or around 4 June 2020 he got a test because of a sore throat, and waited a day for the result.
(2) On or around 16 July 2020 he undertook a test because he had symptoms. He had to wait five days for the test results, and had to turn down shifts he would otherwise have worked.
(3) On or around 14 August 2020, he decided to get tested because he had been doing “so many COVID-19 positive jobs”. He had to wait two days for the results.
(4) On or around 21 August 2020 he got tested because he had a sore throat and was short of breath. He had to wait one day for the results.
[28] Mr Gomperts said that in the June to mid-September 2020 period, he noticed that he was receiving calls to see if he was available to work shifts, it appeared to him that St John Ambulance was running low on vehicles because they were getting extra NEPT shifts from Ambulance Victoria, and that employees were sent to particularly busy areas such as Frankston. From July to August 2020, Mr Gomperts was transferring patients from aged care facilities where there had been COVID-19 breakouts to hospitals. This involved in some cases entering nursing homes where a whole floor of residents had contracted COVID-19. His colleagues had told him that crews were over-worked and some people were dropping out of shifts because they were too tired to work. He described one incident in mid-August 2020 where his crew collected a patient from a hospital, but were not wearing the correct PPE because they had not been told the patient had been tested for COVID-19. They were allowed to return to work later that day after showering, putting on another uniform and being placed in a different vehicle.
[29] Mr Gomperts said that, as a casual employee, he did not have leave entitlements to access when he was absent from work. The Victorian Government’s test payment was not really good enough, in his opinion, because it was only $450 and was only available once a month. Mr Gomperts had to be tested and therefore had to self-isolate twice in August 2020 and, in any event, the payment did not cover the income he lost as a result of dropped shifts. He had not been directed by DHHS to self-isolate on any occasion, nor had he tested positive, so he had not been eligible for the Pandemic Disaster Leave Payment.
Jayde Cook
[30] Jayde Cook is employed as a casual Ambulance Attendant by St John Ambulance (Vic) Incorporated, and he is covered by the Ambulance Award. His job requires him to be responsible for managing the care of patients being transported either from hospitals or residential facilities of the patient’s home to their destination. In his statement of evidence dated 2 October 2020, he said that since the COVID-19 pandemic began, he had had to self-isolate on a number of occasions.
[31] The first occasion was on 1 May 2020 when he was exposed to someone with COVID-19 symptoms without wearing the correct PPE. He was allowed to return to work the next day because he had been wearing standard PPE. The second occasion was on 25 July 2020, when he walked into a patient’s room only wearing a surgical mask, in circumstances where an aerosol generating procedure had been conducted continuously for the previous three days. He was instructed to quarantine away from his family for 48 hours, and potentially up to 14 days depending on the patient’s test results. The patient tested negative in 46 hours. The result was that Mr Cook dropped two shifts. He was not entitled to the Victorian Government’s test payment, or the $1,500 self-isolation payment, because he was not waiting for his own results. As a casual employee, he had no leave entitlements to access and was accordingly left out of pocket. The third occasion was on 4 September 2020, when Mr Cook developed COVID-19 symptoms and had to wait two days for his test results. He dropped two shifts as a result. He claimed the Victorian Government’s test payment of $450, but he was left out of pocket to the amount of about $70 after tax.
[32] Mr Cook expressed the opinion that the likelihood of contracting COVID-19 depends on whether there is a PPE breach when donning or doffing PPE, or whether the appropriate PPE is worn in a given situation (for example, when he is not told about a confirmed case). Mr Cook said that the only occasion he would be contacted by DHHS to self-isolate would be if he recorded on a patient’s care records that there was a PPE breach and the patient later tested positive, or if a patient tested positive and the correct PPE had not been worn.
[33] In a supplementary witness statement made by Mr Cook on 21 October 2020, he identified and attached the risk matrix table which St John Ambulance requires to be followed in the event of a PPE breach, and a copy of the procedure to be applied if a patient tests positive after being transported.
Katrina Hoeing
[34] Katrina Hoeing is employed as a permanent full-time Ambulance Attendant by St John Ambulance (Vic) Incorporated, and is covered by the Ambulance Award. In her statement of evidence dated 2 October 2020, she said that since the start of the second wave of infection in Victoria, she had transferred actual or suspected COVID-19 cases on every shift that she had worked. In most cases these were people from aged care facilities or residential facilities. She said that she had to self-isolate on two occasions since the start of the pandemic:
(1) In or around July 2020, she had been in contact with a colleague who had tested positive for COVID-19, and she developed a runny nose. She was instructed to self-isolate. She took a test and had to wait four days for the result. She used personal leave to cover the absence from work.
(2) In August 2020 she was directed to self-isolate because of a PPE breach which occurred when she was not informed that a patient was suspected of having COVID-19. She was off work from 6 August to 10 August 2020 while awaiting test results, and this was also covered by personal leave.
[35] As a result of these two incidents, Ms Hoeing said that she had no personal leave entitlements left. St John Ambulance ceased to become eligible for JobKeeper payments from 29 September 2020, which means this will not be able to be used as a support payment if Ms Hoeing has to self-isolate again. She may be able to claim the Victorian Government’s test payment or the Pandemic Disaster Leave Payment depending if she qualifies at the time.
Submissions in opposition
[36] Submissions in opposition to the award of a paid pandemic leave entitlement in the SCHADS Award were made by:
• the Australian Industry Group;
• the Australian Chamber of Commerce and Industry, Aged and Community Services Australia, Leading Age Services Australia, Australian Business Industrial and the NSW Business Chamber Ltd; and
• the Australian Federation of Employers and Industries.
[37] It is not necessary to separately summarise the submissions made by the above parties, since they all advanced broadly the same propositions, namely:
• the evidence does not establish that any elevated risk of contracting COVID-19 or being required to self-isolate for reasons associated with COVID-19 is manifesting itself with respect to the relevant cohort of employees covered by the SCHADS Award in a discernible way;
• the circumstances of the relevant sectors covered by the SCHADS Award are clearly distinguishable from those of the residential aged care sector covered by the Aged Care Award in terms of the rate of infection amongst employees and the extent to which any elevated risk is manifesting itself;
• employers providing disability support services rely overwhelmingly on funding through the NDIS, and do not have any scope to recover the significant additional employment cost that would flow from the grant of the claim;
• the funding circumstances applicable to disability service providers covered by the SCHADS Award are also distinguishable from the residential aged care sector covered by the Aged Care Award;
• there is no evidence of a demonstrated threat to the resilience of the disability care system;
• there is no evidence that employees will fail to be tested for COVID-19 or self-isolate in the absence of a paid pandemic leave entitlement, taking into account the financial support available from various Governments for employees who are required to self-isolate;
• there has not been a significant change of circumstances affecting the disability services sector demonstrated since the 8 July decision or the August statement;
• the current situation of the COVID-19 pandemic generally is not the same as at the time of the 27 July decision, as the measures introduced by the Victorian Government have been successful in bringing the number of COVID-19 cases in that State under control; and
• the variation sought to the SCHADS Award is accordingly not necessary to meet the modern awards objective.
[38] No interested party made submissions opposing the addition of a paid pandemic leave entitlement to the Ambulance Award.
Consideration
[39] It is convenient at the outset to recapitulate what caused us to decline to award a paid pandemic leave entitlement in the SCHADS Award and the Ambulance Award (as well as in a number of other awards) in the 8 July decision. We accepted the proposition advanced by the applicants that, in respect of employees covered by a number of awards including the SCHADS Award and the Ambulance Award, there was an elevated risk of either COVID-19 infection or being required to self-isolate because of suspected COVID-19 infection. 7 We further accepted that, where such employees did not have access to paid leave entitlements if they were required to self-isolate (whether because they could access their personal leave, or had exhausted their leave entitlements, or were engaged on a casual basis), there was a very real risk that they might decide not to report any COVID-19-like symptoms or contact with someone suspected of having COVID-19 in order to avoid having to be deprived of work and income for a period.8 We also identified that a “regulatory gap” existed for a person who was required to self-isolate but ultimately tested negative for COVID-19, because they would not be eligible for workers’ compensation entitlements, nor might they be able to access personal leave entitlements even if they had them because they were not sick.9
[40] However, these matters did not cause us to award any paid pandemic leave entitlement. Although the matters required to be considered in connection with the modern awards objective under s 134(1) of the Fair Work Act 2009 (FW Act) were fairly finely balanced, the “overriding factor” in rejecting the claim at that time was that, in the current circumstances, the degree of success in controlling the COVID-19 pandemic meant that the elevated potential risk to health and care workers of actual or suspected exposure to infection had not manifested itself in actuality. 10
[41] In the 27 July 2020 decision, we determined to award a paid pandemic leave entitlement applicable to the employees in the residential aged care sector primarily because, at the time the decision was made, the elevated risk of infection and a requirement to self-isolate had manifested itself in the aged care sector, at least in Victoria. 11 It was necessary in those circumstances, we determined, to award a paid pandemic leave entitlement as a measure to ensure that frontline workers in the sector had financial support if it was necessary for them to self-isolate. This operated as an infection control measure, since it was intended to ensure that employees did not have a financial incentive not to report COVID-19-like symptoms or contact with a suspected COVID-19 case.12
[42] The 27 July decision was made at a time when the second wave of COVID-19 infection had commenced in Victoria and shortly before it reached its peak in mid-August 2020. That second wave in Victoria was responsible for the large majority of infections, and over 80% of the fatalities, that have occurred during the COVID-19 pandemic in Australia to date. Approximately 75% of all fatalities have occurred in Australian Government subsidised residential aged care facilities. The 27 July decision must be understood in that context.
[43] The second wave in Victoria was brought under control in approximately late September 2020. The overall course of the pandemic in Australia since it began is best illustrated by the following graph, taken from the federal Department of Health’s COVID-19 website page on 22 December 2020:
[44] The graph shows that by the time of the hearing on 22 October 2020, and at all times since then to the date of this decision, the pandemic Australia-wide has largely reverted to the position it was between the first and the second waves. The position has now been relatively stable since late September 2020, a period of approximately three months. The position as at 22 December 2020 was that there had been 15 new locally acquired cases in Australia in the last 24 hours, all of which are attributable to a local outbreak in the Northern Beaches area of Sydney. There is a total of 135 currently active cases, of which 87 are in New South Wales. The 13 active cases in Victoria appear to be mostly overseas-acquired cases. There are no active cases amongst people living in Australian Government-subsidised residential aged care facilities, nor amongst people receiving Australian Government-subsidised in-home care. There are currently 23 hospitalised cases, of which none are in Victoria and none are in intensive care. The last fatality occurred on or about 30 November 2020, and the last fatality before that occurred on or about 28 October 2020.
[45] The evidence before us strongly confirms the conclusion that we had reached in the 8 July decision, namely that there is an elevated risk of becoming infected with COVID-19, and a consequential elevated risk of being required to self-isolate, in the sectors of employment covered by the SCHADS Award and the Ambulance Award. The source of the risk in respect of NEPT employees (who are the employees to whom the Ambulance Award has actual application) is obvious: they are required to transport patients who are either infected with COVID-19 or who are suspected of being infected and, in doing so, they are required to enter hospitals and aged care facilities where the risk of infection is high. In the disability and home care sectors covered by the SCHADS Award, the elevated degree of risk arises principally from the fact that employees are required by their jobs to come into very close personal contact with clients in a way which makes social distancing impossible. Aggravating factors include that, in the disability sector, some employees must attend to their clients in congregate living settings, and the casualised nature of employment in the sector means that many employees work for multiple clients in different settings. Both these factors increase the risk of cross-infection.
[46] There is some evidence that this elevated level of risk manifested itself during the second wave of infection in Victoria. In respect of the disability sector covered by the SCHADS Award, the evidence of Professor Kavanagh drawn from NDIS data is that some 201 NDIS workers have become infected, and the fact that 154 participants have also become infected suggests that the virus is being transmitted by participants to workers and vice versa. These are not insignificant numbers, and they are likely to have led to a significant number of employees, including casual employees, being required to self-isolate. However they constitute a small proportion of all COVID-19 cases in Australia, and are only a fraction of the numbers in aged care. Recognising the imperfections in the Victorian WorkCover notification data, Professor MacIntyre’s analysis nonetheless shows that the infection rate in the disability sector and home care sectors (as encompassed by ANZSIC categories Q8790 and Q8609) is only about one eighth of that in aged care. In respect of the NEPT sector, we accept Mr Eade’s evidence that it can reasonably be inferred that some workers have become infected, although the number is likely to be reasonably small. Again, Professor MacIntyre’s analysis of the Victorian WorkCover notification data shows that the infection rate in the ambulance sector is only a fraction of that in aged care. It may also be accepted that a perhaps disproportionately high number of NEPT workers have had to self-isolate, in many cases on multiple occasions, and that a large proportion of these are likely to have been casual employees.
[47] However, as earlier stated, the fact remains that the second wave in Victoria was brought under control approximately three months ago, and there is no evidence that significant numbers of employees in the NDIS, home care or NEPT sectors have had to self-isolate in the period since then. There is indeed no evidence that any have needed to do so. There is no other evidence that the resilience of those sectors in terms of their capacity to provide essential services to their client bases is currently under threat from the COVID-19 pandemic. In those circumstances, we cannot be satisfied that the introduction of a paid pandemic leave entitlement in the SCHADS Award or the Ambulance Award is necessary to meet the modern awards objective. In relation to the mandatory considerations in s 134(1) of the FW Act, we do not consider that any of them weigh in favour of the grant of the claims. In respect of s 134(1)(a), although we accept that some employees covered by at least the SCHADS Award are low paid, the absence of any widespread requirement in the current circumstances for them to self-isolate without any monetary compensation means that this is a neutral consideration. The matters in paragraphs (b), (c), (d), (da) and (e) of s 134(1) have little or no relevance to the issue of paid pandemic leave and accordingly we do not assign them weight in our consideration. In relation to s 134(1)(f), while theoretically the establishment through the exercise of modern award powers of a paid pandemic leave entitlement might increase employment costs and the regulatory burden on employers, the lack of substantial practical work for such an entitlement in the current circumstances means that this is also a neutral consideration. Section 134(1)(g) is not relevant. As to s 134(1)(h), although the progress of the COVID-19 pandemic has clear consequences for the national economy, the current low rate of infections means that the introduction of a paid pandemic leave entitlement is not likely to have any significant effect upon the pandemic at the current time, and consequently little or no effect upon the national economy.
[48] For the above reasons, we decline to vary the SCHADS Award or the Ambulance Award to provide for a paid pandemic leave entitlement at this time. However, it is necessary to acknowledge yet again that the circumstances of the COVID-19 pandemic in Australia may change rapidly, as has amply been demonstrated over the course of 2020. At the time of this decision, the community outbreak which has occurred in Sydney is of obvious concern. Accordingly, we will again simply stand the matter over and will continue to review the situation. Interested parties are granted liberty to apply at short notice.
VICE PRESIDENT
Appearances:
Mr T Clarke on behalf of the Australian Council of Trade Unions.
Ms R Liebhaber on behalf of the Health Services Union.
Mr M Robson on behalf of the Australian Municipal, Administrative, Clerical and Services Union.
Mr M Resic on behalf of the United Workers’ Union.
Ms A Moussa on behalf of Mr Joshua Gomperts.
Mr J Arndt and Mr S Cahill on behalf of the Australian Chamber of Commerce and Industry, Australian Business Industrial and the New South Wales Business Chamber Ltd, Aged and Community Services Australian and Leading Age Services Australia.
Mr B Ferguson and Ms R Bhatt on behalf of the Australian Industry Group.
Ms S Lo on behalf of the Australian Federation of Employers and Industries.
Hearing details:
2020.
Sydney (via video-link):
October 22.
Printed by authority of the Commonwealth Government Printer
<PR725852>
1 [2020] FWCFB 4327
2 [2020] FWCFB 3561
3 [2020] FWCFB 3940
4 [2020] FWCFB 3834
5 Transcript, 22 October 2020, PNs 2145-2146
6 Ibid at PN 2165
7 [2020] FWCFB 3561 at [122]
8 Ibid at [123]
9 Ibid at [128]
10 Ibid at [129]
11 [2020] FWCFB 3940 at [47]
12 Ibid at [56]
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