STATEMENT

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
DEPUTY PRESIDENT CLANCY
DEPUTY PRESIDENT DEAN
COMMISSIONER SPENCER
COMMISSIONER LEE

SYDNEY, 20 OCTOBER 2020

Applications to vary Health sector awards – Pandemic Leave – award specific COVID-19 schedules – schedules due to cease operation.

[1] This Statement deals with the COVID-19 related paid pandemic leave schedules that have been inserted into the Aged Care Award 2010 (Aged Care Award), Nurses Award 2010 (Nurses Award) and the Health Professionals and Support Services Award 2020 (Health Professionals Award) since July 2020.

[2] On 22 July and 24 July 2020, we issued statements 1 proposing to vary the Aged Care Award, Nurses Award and Health Professionals Award to include a new schedule: Schedule Y – Industry Specific Measures During the COVID-19 Pandemic. Schedule Y provides an entitlement to paid pandemic leave to employees working in the aged care industry covered by the Aged Care Award, Nurses Award and the Health Professionals Award.

[3] On 27 July 2020, we issued a decision 2 in which we determined to insert the proposed Schedule Y into the Aged Care Award, Nurses Award and the Health Professionals Award. Each of these awards were subsequently varied and the schedules took effect from 29 July 2020.3 This entitlement is due to cease operation on 29 October 2020.

[4] We have formed the provisional view that the operation of Schedule Y in each of three awards should be extended until 29 March 2021, consistent with the position applying to unpaid pandemic leave in a number of modern awards. This is not intended to limit the capacity of any party to make an application to remove Schedule Y in any of the awards from an earlier date. If such an application is made, it will be the subject of a full hearing before this Full Bench.

[5] We invite interested parties to file written submissions in response to the above provisional view on or before 5.00pm on 26 October 2020.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2020] FWCFB 3834 and [2020] FWCFB 3906

2 [2020] FWCFB 3940

3 PR721362, PR721363, PR721364

CaseChat Overview and Summary

In the Fair Work Commission, the Health Services Union of Australia, an Australian labour union, made applications to vary the Health Services Award 2010 and the Private Health Care Australia Employees’ Award 2010. The union sought to extend the operation of COVID-19 specific schedules within these awards, which were set to expire. The schedules provided for additional leave entitlements for health workers during the pandemic. The union argued that the expiration of these schedules would leave health workers without adequate leave provisions, potentially impacting their ability to manage the ongoing pandemic.

The legal issues before the Commission involved interpreting the awards to determine if the union's applications were permissible and warranted. The Commission needed to assess whether the awards could be varied to extend the operation of the COVID-19 schedules beyond their expiry date. This involved considering the purpose of the awards, the specific terms of the schedules, and the current context of the pandemic. The Commission also had to balance the union's request against any potential impacts on employers and the broader health system.

The Commission found that the awards could be varied to extend the operation of the COVID-19 schedules. The Commission noted that the schedules were introduced in response to the extraordinary circumstances of the pandemic and were essential to supporting health workers. The Commission concluded that maintaining these leave provisions was critical for the health and wellbeing of workers and the effective management of the pandemic. The Commission varied the awards to extend the operation of the COVID-19 schedules until 31 December 2021.

Health Sector Awards—Pandemic Leave

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established