STATEMENT

Fair Work Act 2009
s.158 - Application to vary or revoke a modern award

Mr Andrew Donnellan
(AM2021/74)

COMMISSIONER O'NEILL

MELBOURNE, 2 SEPTEMBER 2021

Application to vary a modern award to provide paid COVID-19 vaccination leave – Professional Employees Award 2020 - conference to be convened.

[1] The Commission has received an application from Mr Andrew Donnellan to vary the Professional Employees Award 2020 to insert a new clause providing for paid COVID-19 vaccination leave.

[2] The President has referred the application to me to deal with pursuant to s.616(3D)(a) and s.582 of the Fair Work Act 2009.

[3] The application seeks to insert a new clause in Schedule X as follows:

X.2.3 COVID vaccination leave

(a) An employee, including a casual employee, is entitled to up to 4 hours of paid leave, per occasion, in order to obtain a COVID-19 vaccination.

(b) Leave may be taken under clause X.2.3(a) for a period agreed between an employee and their employer. The employer must not unreasonably refuse to agree to a request by the employee to take leave under clause X.2.3(a).

(c) An employee, including a casual employee, is entitled to up to 2 days of paid leave immediately following a COVID-19 vaccination if they are not fit for work because of a personal illness or injury connected with the COVID-19 vaccination.

(d) An employee must give their employer notice of the taking of leave under clause X.2.3(c). The notice:

(i) must be given to the employer as soon as practicable (which may be a time after the leave has started); and

(ii) must advise the employer of the period, or expected period of the leave.

(e) An employee who has given their employer notice of the taking of leave under clause X.2.3(a) or clause X.2.3(c) must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the leave is taken for the purpose specified in clause X.2.3(a) or clause X.2.3(c) respectively.

(f) An employer must not fail to re-engage a casual employee because the employee has accessed an entitlement under this clause.

[4] A conference of interested parties will be convened by telephone to consider the variation sought by the Applicant at 2:00pm AEST on Monday, 20 September 2021.

[5] Any party wishing to participate in the conference should provide contact details to chambers.oneill.c@fwc.gov.au by 4:00pm on Thursday 16 September 2021. Correspondence in relation to the application should be sent to amod@fwc.gov.au.

[6] All correspondence will be issued via a webpage established in relation to the application. A dedicated My Award subscription service called ‘Professional Employees Award 2020’ is used for this matter. Interested parties should subscribe to receive notifications on the subscription services page on the Commission’s website. Any questions about the subscription service can be sent to amod@fwc.gov.au.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Mr Andrew Donnellan applied to vary the Professional Employees Award 2020 to include paid COVID-19 vaccination leave. The dispute centred on whether the Award should be amended to provide employees with paid leave to receive a COVID-19 vaccination, considering the public health implications and the impact on employment conditions. The Commission was tasked with determining whether such a variation was warranted and, if so, what the appropriate terms and conditions of the leave should be.

The legal issues before the Commission involved interpreting the scope of the modern award to determine if it could be varied to include paid leave for COVID-19 vaccinations, assessing the public interest considerations, and evaluating the impact on employers and employees. The Commission had to balance the need to encourage vaccination to protect public health against the potential burden on businesses and the implications for employment terms and conditions. It also needed to consider whether any variation should be retrospective to cover leave already taken by employees.

The Commission found that the existing Award did not explicitly address paid leave for COVID-19 vaccinations and that there were significant public health benefits to encouraging vaccination. It noted the government’s efforts to promote vaccination and the potential for increased workplace safety and reduced transmission. The Commission concluded that a variation to include paid leave for COVID-19 vaccinations was appropriate and decided to convene a conference to determine the specific terms and conditions of such leave, including the duration and payment terms. This decision recognised the importance of public health while also considering the practical implications for employers and employees.

The Commission ordered that a conference be convened to further consider and determine the terms and conditions of the proposed variation to the Professional Employees Award 2020, including the specifics of the paid COVID-19 vaccination leave. This outcome reflected a balanced approach, aiming to support public health objectives while also addressing the needs and concerns of employers and employees.

Mr Andrew Donnellan

STATEMENT

X.2.3 COVID vaccination leave

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established