The Fair Work Commission intends to urgently insert a new pandemic schedule into most modern awards. If the proposal is unopposed, a formal determination will likely be made by the end of next week.
See paragraphs 108 and 109 of the Commission’s 1 April 2020 Statement to see which awards will contain the new schedule.
Current law does not clearly prohibit employers from dismissing healthy employees for self-isolating, nor entitle healthy employees to take self-isolation leave. This gap in the award safety net is to be filled with a single entitlement to take two weeks unpaid pandemic leave for employees:
- directed to self-isolate or doing so on medical advice; or
- who are otherwise prevented from working by measures taken by the government or medical authorities in response to COVID-19.
The leave would be available to permanent and casual employees in full, until 30 June 2020 (or longer by further order of the Commission). It would be unlawful for employers to take adverse action against employees for exercising this right.
Included in the schedule would be a new right to agree that an employee will take twice as much annual leave at half as much pay. This provision has already been inserted into hospitality, restaurant and clerks awards.
Any annual leave loading entitlement would still be payable. Any such agreement must be in writing and retained as an employee record.
The Commission flagged that parties may apply for further award variations, such as giving employers greater capacity to direct employees to take annual leave or temporarily reduce the hours of permanent staff.
I have been asked ‘but can’t we agree changes with employees already?’ Yes and no. Consent cures most ills, but you can’t contract out of an award entitlement. Check the terms of applicable awards (because they’re not all the same). An employee’s consent to work for below-award wages or for less than the minimum engagement period would not protect an employer from a future underpayment claim.