| [2021] FWCFB 1596 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.158—Application to vary or revoke a modern award
Health sector awards– Pandemic Leave
(AM2021/15 and Ors)
VICE PRESIDENT HATCHER |
SYDNEY, 24 MARCH 2021 |
Health sector awards – Pandemic Leave – Schedule X-Additional measures during the COVID-19 pandemic – Schedule Y-Industry Specific Measures During the COVID-19 Pandemic – schedules due to cease operation.
[1] On 8 April 2020 a Full Bench of the Commission issued a decision 1 on its own initiative, varying 99 modern awards to insert a new schedule, Schedule X – Additional measures during the COVID-19 pandemic including into the following awards (collectively, the Health Awards):
• Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020 (ATSIHWACCHS Award);
• Aged Care Award 2010 (Aged Care Award);
• Ambulance and Patient Transport Industry Award 2020 (Ambulance Award)
• Health Professionals and Support Services Award 2020 (HPSS Award)
• Medical Practitioners Award 2020 (Medical Practitioners Award);
• Nurses Award 2010 (Nurses Award);
• Pharmacy Industry Award 2020 (Pharmacy Award);
• Social, Community, Home Care and Disability Services Industry Award 2010 (SCHCDSI Award); and
• Supported Employment Services Award 2020 (SES Award).
[2] The Schedule X provisions in each award contain provisions establishing entitlements to unpaid pandemic leave and the taking of twice as much annual leave at half pay. The Schedule X provisions in the Health Awards were expressed to cease operation on 31 July 2020.
[3] Applications by various unions to insert an entitlement to paid pandemic leave in the Health Awards, and the responsibility for any extension of the operative period of the Schedule X in the Health Awards, were referred to this Full Bench for determination.
[4] In a statement issued 29 July 2020 2, we expressed a provisional view that the Schedule X provisions in the Health Awards should have their operation extended until 29 October 2020. No party opposed this provisional view, and a determination varying the Health Awards accordingly was published on 31 July 2020.3
[5] In a decision dated 29 October 2020 4, we granted applications to further extend the operation of the Schedule X provisions to 29 March 2021 in the Health Awards and a determination was published on 29 October 2021.5
[6] We published a decision on 27 July 2020 6 (the July 2020 decision), determining to vary the Aged Care Award, the Nurses Award and the HPSS Award in respect of employees who are employed by residential aged care providers or are required to work in residential aged care facilities, providing an entitlement to paid pandemic leave. This entitlement was inserted as Schedule Y in the abovementioned three awards and was expressed to operate until 29 October 2020.
[7] On 20 October 2020 we published a statement 7 expressing the provisional view that the operation of Schedule Y in the abovementioned three awards should be extended until 29 March 2021. Submissions opposing our views were filed by the Australian Chamber of Commerce and Industry and Australian Federation of Employers and Industries.
[8] Submissions supporting our provisional view were filed by the Australian Council of Trade Unions.
[9] Submissions relating to Commonwealth funding arrangements under the Support for Aged Care Workers in COVID-19 (SACWIC) grant program were filed by The Australian Government—Department of Health.
[10] On 29 October 2020 we published a decision 8 (the October 2020 decision) confirming our provisional view and extended the operation of Schedule Y in the abovementioned three awards to 29 March 2021.
[11] On 3 March 2021 a Statement 9 was issued advising parties that Schedules X and Y in certain awards were due to expire on 29 March 2021. The Statement indicates that any party who wished to extend the operation of the schedules in a particular award should make an application by 22 March 2021.
[12] Applications to vary Schedule X have been received with respect to all the Health Awards and applications to vary Schedule Y have been received with respect to the Aged Care Award, Nurses Award and the HPSS Award.
[13] The applications seek to extend the operation of Schedules X and Y until 31 December 2021.
[14] In the July 2020 decision, we determined that it was necessary for a paid pandemic leave entitlement to be introduced for employees in the aged care sector in order to achieve the modern awards objective in s 134 of the FW Act. In making this determination, we considered the following matters to be of significance:
• workers in the aged care sector are exposed to an elevated risk of being required to self-isolate, and that risk was currently manifesting itself at least in Victoria;
• such workers may not have access to paid leave entitlements in order to self-isolate;
• the requirement for self-isolation is primarily to prevent the spread of infection and, in the aged care sector, is critical and a matter in the public interest because of the vulnerability of aged persons to COVID-19 fatalities;
• the requirement to self-isolate may place low-paid employees in significant financial difficulty and even distress;
• there is a real risk that persons who do not have access to leave entitlements might not report COVID-19 symptoms which would require them to self-isolate but might seek to attend for work out of financial need, which represents a significant risk to infection control measures;
• industry financial assistance measures announced by the Commonwealth would substantially if not wholly remove the cost of any paid pandemic leave entitlement to employers;
• the effectiveness of infection control measures has a clear relationship to the restoration of the health of the national economy; and
• the establishment of a paid pandemic leave entitlement for aged care workers is necessary to support them in their critical and essential work.
[15] At the time of the July 2020 decision, the position with respect to the COVID-19 pandemic was deteriorating significantly, particularly in Victoria. The position deteriorated further after the July decision and reached a peak in early August 2020. More recently, the position has significantly improved. The Commission has published an Information Note—Covid-19 situation update, which was most recently updated on 19 March 2021. The Information Note provides an update of the current rate of transmission of COVID-19 in Australia, with a particular focus on the situation in Victoria and New South Wales (NSW).
[16] In the October 2020 decision, we stated the following regarding Schedule Y:
“It is too early to say that the current improving situation will be sustained, and it is essential that infection control measures such as the paid pandemic leave entitlement remain in place for the time being. The date of 29 March 2021, when the Schedule X entitlements will cease operation (subject to any further extension) in line with the modified JobKeeper scheme, represents a convenient end point for the extension of the entitlement. As we emphasised in stating our provisional view in the October statement, the adoption of that date is not intended to prevent any party from making an application for the entitlement to cease at an earlier date.
…
We are not prepared to adopt the ACTU proposition that the entitlement be extended in duration indefinitely during the currency of the COVID-19 pandemic. It was adopted as an emergency measure for a sector affected by the pandemic in a particularly significant way, and it involves the highly unusual extension of a paid leave entitlement to casual employees. It is appropriate therefore that it operate in a time-limited way and be the subject of regular review.” 10
[17] The emergency circumstances which caused us to award the paid pandemic entitlement for aged care employees do not appear to have pertained for some time now. It is therefore our provisional view that Schedule Y should not be further extended.
[18] We are however minded to grant the extension of the operation of Schedule X on the basis that as recently as February 2021, community transmission of COVID-19 has occurred within Australia. Without the continued operation of Schedule X we are of the view that there would be a ‘regulatory gap’ in the award safety net concerning employees who are required to self-isolate. Continuing access to unpaid pandemic leave will enable more people to remain in employment and will support the important public policy objective of encouraging those who should self-isolate to do so, thereby limiting the spread of COVID-19 in workplaces and allowing businesses to continue to operate.
[19] We invite interested parties to file written submissions in response to the above provisional views on or before 5pm Thursday 25 March 2021. Submissions should be sent to amod@fwc.gov.au in word version and include the relevant award title in the subject line.
[20] If any submissions are filed opposing our provisional views then a hearing will take place at 4pm on Friday 26 March 2021, by telephone. Parties wishing to appear at the hearing are to provide the name, direct number and organisation by 12pm Friday 26 March 2021 to chambers.hatcher.vp@fwc.gov.au.
[21] In the event that no submissions are filed opposing our provisional views then the hearing proposed will be vacated and we will vary each of the awards abovementioned accordingly.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
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10 [2020] FWCFB 5768, [29] – [31].