Unpaid Pandemic Leave in Response to COVID-19
09 Apr 2020
Unpaid Pandemic Leave
On 1 April 2020, the Fair Work Commission issued a Statement detailing its intention to vary 103 modern awards in response to the COVID-19 pandemic. The proposed variations are intended to provide employees with an entitlement to 2 weeks of unpaid pandemic leave as well as provide employers and employees with the ability to take annual leave at half pay.
It is proposed that full-time, part-time and casual employees may elect to take up to 2 weeks’ unpaid leave if the employee is:
required by government or medical authorities or acting on medical advice, to self-isolate; or
otherwise prevented from working by measures taken by government or medical authorities in response to the COVID-19 pandemic.
The proposed variation also expressly states that the entitlement to unpaid pandemic leave is a workplace right for the purposes of the general protections provisions of the Fair Work Act 2009 (Cth). What this means is that an employer is prohibited from taking adverse action (including dismissal) against an employee for reasons that include them seeking to exercise their workplace right to take a period of unpaid pandemic leave.
The unpaid pandemic leave applies if the employee is required to work at premises operated by the employer. This means, if an employee is not required to attend the employer’s premises and is able to carry out their duties in isolation (for example, by working from home), then an employee will not be eligible to receive unpaid pandemic leave.
Notice and Evidence
The employee must give the employer notice of taking unpaid pandemic leave and the reason the employee requires the leave, as soon as practicable (which may be a time after the leave starts).
If required by the employer, the employee must give the employer evidence that would satisfy a reasonable person that the leave is taken for one of the reasons specified above.
All employees will be able to access the entitlement to unpaid pandemic leave, whether they are a permanent full time or part time employee or casual employee. The entitlement will not be pro-rated.
Unpaid pandemic leave does not affect any other paid or unpaid leave entitlement of the employee and counts as service for the purposes of entitlements under the applicable modern award and the National Employment Standards.
An employee may take unpaid pandemic leave even if they have not exhausted their paid leave entitlements.
Unpaid pandemic leave is proposed to be a one-off entitlement, which means employees will only be entitled to take the leave once up until 30 June 2020; however, it is not contingent on service and is available immediately, in full.
It does not operate on a “per occasion” basis, and therefore will not be available to those employees compelled to self-isolate on more than one occasion.
As at the date of this publication, the Commission’s statement is only a provisional view and is not yet operational. We will issue a further update once the proposed variation have been determined.
For further information or assistance contact Murfett Legal on +61 8 9388 3100.
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