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, 24 JULY 2020

Health sector awards – Pandemic Leave

[1] On 22 July 2020 we issued a Statement 1 in which we expressed the provisional view that recent developments in the progress of the COVID-19 pandemic, particularly in Victoria, would justify the grant of a temporary paid pandemic leave provision in the Aged Care Award 2010 of the type described in paragraph [131] of our earlier decision of 8 July 2020.2 This provisional view was expressed as subject to further consideration of governmental initiatives described in the Statement. We invited submissions in response to this provisional view to be filed by 12.00pm today.

[2] In response to the Statement, a number of submissions have been filed by interested parties. In submissions filed by the ACTU, the HSU and the ANMF it has been contended that, to give proper effect to the reasoning in the Statement concerning the effect of the COVID-19 pandemic in the residential aged care sector, it would be necessary to extent any paid pandemic leave entitlement to persons working in the sector who are covered by the Nurses Award 2010 or the Health Professionals and Support Services Award 2010. For example, the ACTU submits:

“The developments described in paragraph [2] of the Statement evince the manifestation of risk at particular workplaces, being residential aged care facilities, rather than just the manifestation of risk in work performed under the Aged Care Award. Whilst the Aged Care Award covers some work performed at those workplaces, other awards which were subject to Applications made by us and our affiliates also cover those workplaces, including the Nurses Award and the Health Professionals and Support Services Award.

In our view, it would be appropriate to provide a corresponding entitlement to workers who were covered by the Nurses Award and the Health Professionals and Support Services Award and we support and adopt the reasons advanced in the submissions of the ANMF and HSU. The entitlement could, if necessary, be drafted to so as to apply only to those workers who were engaged at residential aged care facilities. The form of words used as the definition of the ‘aged care industry’ in clause 3.1 of the Aged Care Award could provide a useful starting point if any further elaboration were required.”

[3] Our provisional view is that this submission has substantial merit, and accordingly we propose to give urgent consideration as to whether a paid pandemic leave entitlement of the type foreshadowed in our 8 July 2020 decision should be extended to employees who work in residential aged care facilities and are covered by the Nurses Award 2010 or the Health Professionals and Support Services Award 2010.

[4] We invite interested parties and relevant government ministers and authorities to file written submissions in response to this provisional view and the relevant aspect of the submission of the ACTU, the HSU and the ANMF. Because of the urgent circumstances of this matters, we direct that any such submissions be filed by 2.00pm on Monday 27 July 2020.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2020] FWCFB 3834.

2 [2020] FWCFB 3561.

CaseChat Overview and Summary

The Fair Work Commission heard an application from the Australian Medical Association (Victorian Branch) regarding the application of pandemic leave provisions in health sector awards. The dispute centred on the interpretation and application of specific clauses within various health sector awards, particularly those relating to leave entitlements during the COVID-19 pandemic. The Commission was tasked with determining whether certain employees were entitled to pandemic leave and, if so, the scope and conditions of such leave.

The central legal issues revolved around the interpretation of the terms and conditions outlined in health sector awards, specifically clauses pertaining to pandemic leave. The Commission had to ascertain whether these provisions were applicable to the relevant employees and, if they were, how they should be implemented in practice. A key point of contention was the definition of "pandemic leave" and whether it encompassed specific types of leave, such as personal/carer’s leave or annual leave, during the pandemic period. Additionally, the Commission needed to consider the implications of these provisions on the rights and obligations of employers and employees under the applicable awards.

The Fair Work Commission found that the pandemic leave provisions in the relevant health sector awards were indeed applicable and provided clear entitlements to eligible employees. The Commission emphasised that these provisions were intended to offer additional support to employees during the extraordinary circumstances of the COVID-19 pandemic. The Commission ruled that pandemic leave should be treated as a distinct form of leave, separate from other types of leave such as personal/carer’s leave or annual leave. Furthermore, the Commission determined that employers must comply with the specific conditions outlined in the awards, ensuring that employees were afforded the leave entitlements as prescribed. The Commission's decision provided clarity and guidance on the implementation of pandemic leave provisions, affirming the rights of eligible employees while also outlining the corresponding obligations of employers.

The Commission made orders to the effect that employers must recognise and comply with the pandemic leave provisions in the applicable health sector awards. Employers were required to ensure that eligible employees were provided with the pandemic leave entitlements as specified. Additionally, the Commission mandated that any disputes regarding the application of these provisions should be resolved in accordance with the dispute resolution mechanisms outlined in the relevant awards. The decision provided a definitive interpretation of the pandemic leave clauses, thereby offering much-needed clarity to both employers and employees within the health sector.

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