Following our update about the Fair Work Commission’s (FWC) proposal to vary a number of modern awards to address the circumstances created by COVID-19, on 8 April 2020 the FWC implemented Phase 1 and made a determination to vary 99 awards.
New award provisions
The changes to the 99 modern awards are largely the same as those that were initially proposed by the FWC, with some minor amendments adopted in light of submissions received during the public consultation period.
The changes will be inserted into a new Schedule X in each of the awards, and will have effect from 8 April 2020 until 30 June 2020.
Aspects of these changes operate as workplace rights and will be protected by the Fair Work Act 2009 (Cth) in the same manner as existing workplace rights.
Unpaid pandemic leave
This new provision entitles any employee covered by the relevant awards to take up to 2 weeks’ unpaid leave if the employee is:
The employee must give notice to the employer that they intend to use this leave as soon as practicable, and the reason why the leave is required. The employer may require the employee to provide reasonable evidence. The employee does not need to exhaust their paid leave before accessing unpaid pandemic leave.
The employer and employee may agree that the employee can take more than 2 weeks’ unpaid pandemic leave.
Unpaid pandemic leave does not affect any other paid or unpaid leave entitlements and counts as service for the purposes of entitlements under the award and the National Employment Standards.
Twice as much annual leave at half pay
Under the new provisions, an employer and employee may agree to the employee taking twice as much leave on half pay. Any such agreement must be recorded in writing and retained as an employee record. New provisions of the Fair Work Act introduced under the JobKeeper program will also provide further scope for employers to have employees take leave on short notice including leave at half pay.
Awards amended and next steps
The awards amended in Phase 1 are industries most likely to be impacted by COVID-19 in the short and medium term, awards which have a significant proportion of award-reliant employees, and awards with a high proportion of small businesses. A list of the awards that now include Schedule X can be found here.
We note that some awards initially proposed to be included in Phase 1 were not included. Those awards are:
The FWC may make further amendments at a later date, which could include extending the Schedule X provisions to additional industries or implementing a broader range of measures to provide greater flexibility.
Contact our team if you would like help understanding how these changes may affect you or your business.
This article provides general comments only. It does not purport to be legal advice. Before acting on the basis of any material contained in this article, we recommend that you seek professional advice.
Paul Dugan, Principal in our Disputes Team
Direct Telephone: +61 8 8210 2266
Kylie Dunn, Senior Associate in our Disputes Team
Direct Telephone: +61 8 8210 2286