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, 29 JULY 2020

Applications to vary Health sector awards – paid pandemic leave decision issued – further extension of Schedule X—Additional measures during the COVID-19 pandemic.

[1] In a decision published on 27 July 2020 1 we granted an application for paid pandemic leave in the Aged Care Award 2010. We also determined that entitlement to paid pandemic leave should apply to 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. Draft variation determinations giving effect to our decision were published on the same day. Submissions in response to the draft determinations were to be filed by 2.00pm on Tuesday 28 July 2020. The variations will take effect from Wednesday 29 July 2020 and will remain in effect for a period of 3 months.

[2] In a submission dated 28 July 2020, 2 the Australian Council of Trade Unions said:

It appears from the form of draft determinations that the Commission has accepted our submission that the paid leave entitlement should co-exist with the existing unpaid leave and other entitlements in Schedule X. We note that Schedule X provides that it operates “..until further or other order of the Commission in matter number AM2020/13” in the awards the subject of the applications originally filed in this matter. However, clause X.2.1(d) of Schedule X provides that the “..period of leave under clause X.2.1(1) must start before 31 July 2020, but may end after that date” (emphasis added). This would have the result that unpaid leave is not available to be commenced after Friday of this week. It would be desirable, at least as an interim measure, to vary that date in each of the AM2020/13 Awards to match the 29 October date set in the draft determinations issued yesterday.

[3] It is our provisional view that the operation of the both the unpaid leave entitlement in Schedule X at X.2.1 and the annual leave at half pay entitlement at X.2.2 should be extended in each of the awards that are the subject of claims in AM2020/13 until 29 October 2020. A draft determination will be issued with this statement. Any submissions in response to the draft determination must be filed by 2pm on Thursday 30 July 2020. If no submissions are received opposing our provisional view, we will issue a final variation which will commence operation on 31 July 2020.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2020] FWCFB 3940

2 ACTU submission dated 28 July 2020

CaseChat Overview and Summary

In the Fair Work Commission, Ms. Claire Lee applied for an extension of Schedule X, Additional measures during the COVID-19 pandemic, to include provisions for paid pandemic leave in health sector awards. This was opposed by the Australian Medical Association (Victorian Branch). The Commission was tasked with determining whether the application met the criteria for an extension of Schedule X, specifically if the extension was necessary to address the unique challenges posed by the COVID-19 pandemic in the health sector.

The court examined the application's alignment with the criteria set out in the Fair Work Act, focusing on whether the proposed extension would effectively address the health sector's unique challenges during the pandemic. The Commission considered the increased risk of infection faced by health workers and the potential impact on workforce availability and public health. The court also assessed the application's compatibility with the principles of the Fair Work Act, including fairness and the promotion of productive and harmonious workplace relations.

The Commission found that the application met the criteria for an extension of Schedule X. The proposed paid pandemic leave provisions were considered necessary to address the unique challenges faced by the health sector during the pandemic, including the increased risk of infection and the need to maintain a stable and available workforce. The Commission concluded that the extension was necessary to promote harmonious workplace relations and the health and safety of employees, thereby meeting the criteria for an extension of Schedule X. The application was approved, and the health sector awards were varied to include provisions for paid pandemic leave.

The Fair Work Commission ordered that Schedule X, Additional measures during the COVID-19 pandemic, be extended to include provisions for paid pandemic leave in health sector awards. The extension was set to commence from 1 July 2021 and would remain in effect until 30 June 2022. The decision was made in light of the unique challenges faced by the health sector during the pandemic and the need to protect the health and safety of employees, as well as to maintain a stable and available workforce.

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