Health Sector Awards—Pandemic Leave
[2020] FWCFB 4327
•17 AUGUST 2020
| [2020] FWCFB 4327 |
| FAIR WORK COMMISSION |
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 | SYDNEY, 17 AUGUST 2020 |
Applications to vary Health sector awards – pandemic leave – further submissions – requests to extend pandemic leave entitlement to other awards – materials not sufficient to demonstrate necessity to vary the SCHADS Award or the Ambulance Award in the manner proposed – relevant information and data requested – extent of COVID-19 infection and effect of Pandemic Leave Disaster Payment for Victoria – directions hearing
Introduction
[1] In a decision published on published on 27 July 2020 1 we determined to establish an entitlement for paid pandemic leave for employees covered by the Aged Care Award 2020 (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. At [66] of that decision, we stated:
“This decision and the award variations we intend to make will not conclude this proceeding. The paid pandemic leave entitlement which we have awarded in the current urgent circumstances may require adjustment, in light of continuing developments, and it is possible that future events may require the consideration of the extension of the entitlement to other awards. The matter is adjourned, but any party may apply to have the matter relisted at short notice, and the Commission itself will continue to monitor developments and may relist the matter of its own initiative.”
[2] Since the issue of that decision, the Commission has received further submissions seeking the extension of the pandemic leave entitlement to other awards. In particular, on 31 July 2020, the Australian 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 Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award) on the basis that there is now discernible evidence that there is an “elevated risk” of contracting COVID-19 being manifested in the sectors in which these employees work. It pointed to the fact that three residents and seven staff in a Victorian disability group home operated by Aruma Services had contracted COVID-19, and submitted that it was necessary for the Commission to act now to prevent an outbreak in the sector like that in aged care. It submitted that workers in these sectors generally face insecure work and low pay and are employed in group homes and residential facilities where COVID-19 can spread rapidly. It relied on evidence from the United Kingdom Office of National Statistics that found that approximately two-thirds of the people who died of COVID-19 between March - May 2020 had a disability. The ASU contended that the Commission’s response should not be limited to disability services, and should instead apply to employees in the broader social and community sector. The ASU said that it believed that it had filed sufficient material to justify the Commission varying the SCHADS Award as proposed but, if more evidence or submissions were required, it sought that directions be issued as a matter of urgency.
[3] 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. In respect of disability service workers, the HSU submitted that there are confirmed positive cases of COVID-19 across 13 disability group homes run by private providers that were formerly operated by the Victorian Department of Health and Human Services (DHSS). This figure does not include group homes that are run by private providers that were not previously operated by DHSS which suggests there could be further cases across the sector. In respect of home care aged care employees, it submitted that aged care clients cared for in their own homes are equally as vulnerable to fatality as those cared for in residential homes and this is evidenced by 54 cases and 5 deaths in home care thus far. The HSU contended that there is also a significant crossover in the workforce between home care and disability support workers, which in turn creates further risk of infection spread. The HSU, like the ASU, submitted that the material before the Commission provided a sufficient basis to vary the SCHADS Award, but it would provide further evidence and submissions if necessary.
[4] On 30 July 2020, the Victorian Ambulance Union Incorporated (VAU Inc), which has acted as the representative of Mr Alan Stokes in the proceedings, filed a submission seeking that the Commission introduce a paid pandemic leave entitlement into the Ambulance and Patient Transport Industry Award 2020 (Ambulance Award). It was submitted that non-emergency patient transport (NEPT) workers are now attending residential aged care facilities more frequently than before the pandemic and are being called upon to transfer residents infected with COVID-19 from aged care facilities to hospitals. It submitted that the assessment and transport of an infected aged care resident involves close contact between the resident and a NEPT employee, and that it believes about 16 ambulance employees have already been infected with COVID-19 during the recent outbreaks, some of whom are employed in the NEPT sector. It sought the relisting of the matter on short notice.
[5] On 3 August 2020, we invited interested parties to file submissions in reply to the above submissions, and a number of submissions were subsequently received.
[6] The Australian Industry Group (Ai Group) strongly opposed the unions’ claims on the basis that there is no evidence of: (1) an “elevated risk” being manifested in actual or suspected infections amongst any significant number of employees covered by the SCHADS Award; or (2) the rate of infection amongst employees covered by the SCHADS Award being equivalent to employees in the residential aged care sector covered by the Aged Care Award. It submitted that employers in the disability support sector rely on NDIS funding and will not have the ability to recover any increase to employment costs in the event the claim is upheld. It also contended that there is no demonstrated threat to the resilience of the disability care system such that the proposed entitlement should apply to casual employees. The Ai Group also contended that there is no evidence that employees will fail to be tested for COVID-19 or self-isolate and in the case that they are required to self-isolate or quarantine, employees will not be materially financially disadvantaged due to the existing payments made available by the Federal and Victorian Governments.
[7] Australian Chamber of Commerce and Industry, Aged & Community Services Australia, Leading Age Services Australia, Australian Business Industrial and the New South Wales Business Chamber Ltd (collectively ACCI) also opposed the unions’ claims on the basis that there is insufficient evidence of an “elevated risk” manifesting itself amongst workers covered by the SCHADS Award in a discernible way and the evidence provided by the ASU and HSU is “incomplete, not publicly available or anecdotal”. Further, ACCI submitted that there are far fewer residents per facility or home than in the residential aged care context, lowering the risk of an outbreak in these workplaces. There is no evidentiary basis, it submitted, to suggest that the risks faced by clients of employees covered by the SCHADS Award are equivalent to the risks faced by residential aged care residents. It is also unclear whether any data exists identifying the number of active cases or fatalities related to or connected with work in the context of the SCHADS Award.
[8] The Australian Federation of Employers and Industries made submissions to similar effect.
[9] The United Workers’ Union supported the submissions of the unions and the VAU Inc on the basis that like employees who are covered by the Aged Care Award, employees covered by the SCHADS Award and Ambulance Award are on the “frontline” of combatting the COVID-19 pandemic and thus should be entitled to paid pandemic leave. It relied on updated industry-specific data confirming nearly 50 residential disability service staff have been infected with COVID-19, affecting 37 residential disability services in Victoria. In aged care in-home care, there have been 65 confirmed cases and 7 deaths. This, it submitted, represents a shift in the balance of relative factors referred to in our decision of 8 July 2020 2 such that these factors now weigh in favour of granting of the entitlement sought.
[10] People with Disability Australia supported the submissions made by the ASU and Inclusion Australia supported the submissions made by the HSU.
Provisional view and next steps
[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
(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.
[12] Noting that the ASU and the HSU seek the opportunity to advance further evidence and submissions in support of their claims, the matter will be relisted for a directions hearing at 9.00am Wednesday 19 August 2020 before Vice President Hatcher. In addition, we invite the Australian Government and the Victorian Government to provide, by 5.00pm Friday 21 August 2020, any information or data relevant to matters (1) and (3) above that might assist us in our further consideration in these proceedings.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR721891>
1 [2020] FWCFB 3940
2 [2020] FWCFB 3561
3 See [2020] FWCFB 3561 at [131]
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