1
Fair Work Act 2009
s.157 - FWC may vary etc. modern awards if necessary to achieve modern awards objective
Health sector awards – Pandemic Leave
(AM2020/13)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT CLANCY
DEPUTY PRESIDENT DEAN
COMMISSIONER SPENCER
COMMISSIONER LEE SYDNEY, 24 JULY 2020
Health sector awards – Pandemic Leave
[1] On 22 July 2020 we issued a Statement1 in which we expressed the provisional view
that recent developments in the progress of the COVID-19 pandemic, particularly in Victoria,
would justify the grant of a temporary paid pandemic leave provision in the Aged Care Award
2010 of the type described in paragraph [131] of our earlier decision of 8 July 2020.2 This
provisional view was expressed as subject to further consideration of governmental initiatives
described in the Statement. We invited submissions in response to this provisional view to be
filed by 12.00pm today.
[2] In response to the Statement, a number of submissions have been filed by interested
parties. In submissions filed by the ACTU, the HSU and the ANMF it has been contended
that, to give proper effect to the reasoning in the Statement concerning the effect of the
COVID-19 pandemic in the residential aged care sector, it would be necessary to extent any
paid pandemic leave entitlement to persons working in the sector who are covered by the
Nurses Award 2010 or the Health Professionals and Support Services Award 2010. For
example, the ACTU submits:
“The developments described in paragraph [2] of the Statement evince the
manifestation of risk at particular workplaces, being residential aged care facilities,
rather than just the manifestation of risk in work performed under the Aged Care
Award. Whilst the Aged Care Award covers some work performed at those
workplaces, other awards which were subject to Applications made by us and our
affiliates also cover those workplaces, including the Nurses Award and the Health
Professionals and Support Services Award.
1 [2020] FWCFB 3834.
2 [2020] FWCFB 3561.
[2020] FWCFB 3906
STATEMENT
E AUSTRALIA FairWork Commission
[2020] FWCFB 3906
2
In our view, it would be appropriate to provide a corresponding entitlement to workers
who were covered by the Nurses Award and the Health Professionals and Support
Services Award and we support and adopt the reasons advanced in the submissions of
the ANMF and HSU. The entitlement could, if necessary, be drafted to so as to
apply only to those workers who were engaged at residential aged care facilities. The
form of words used as the definition of the ‘aged care industry’ in clause 3.1 of the
Aged Care Award could provide a useful starting point if any further elaboration were
required.”
[3] Our provisional view is that this submission has substantial merit, and accordingly we
propose to give urgent consideration as to whether a paid pandemic leave entitlement of the
type foreshadowed in our 8 July 2020 decision should be extended to employees who work in
residential aged care facilities and are covered by the Nurses Award 2010 or the Health
Professionals and Support Services Award 2010.
[4] We invite interested parties and relevant government ministers and authorities to file
written submissions in response to this provisional view and the relevant aspect of the
submission of the ACTU, the HSU and the ANMF. Because of the urgent circumstances of
this matters, we direct that any such submissions be filed by 2.00pm on Monday 27 July
2020.
VICE PRESIDENT
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OF THE FAIR WORK MISSION THE
