[2020] FWCFB 3561
The attached document replaces the document previously issued with the above code on 8
July 2020.
Appearances and hearing details added.
Associate to Vice President Hatcher
Dated 6 August 2020.
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, 8 JULY 2020
Applications to vary Health sector awards – pandemic leave – not satisfied there is an
elevated risk of infection for workers covered by the Pharmacy Award – other awards –
regulatory gap – self-isolating as a result of potential contact with a suspected COVID-19
carrier in the course of employment or the display of potential COVID-19 symptoms – not
presently satisfied that the applications necessary to achieve the modern awards objective –
current circumstances – degree of success in controlling the COVID-19 pandemic means
elevated potential risk to health and care workers of actual or suspected exposure has not
manifested – as position in respect of the COVID-19 pandemic has potential to radically
change – matter stood over – may be relisted on request at short notice if position
significantly deteriorates.
Introduction
[1] In a decision published on 8 April 2020 (April decision), a Full Bench of the
Commission, acting on its own initiative in response to the current worldwide COVID-19
pandemic, determined to vary 99 modern awards to include provisions establishing an
entitlement to unpaid pandemic leave.1 The provisions, which were in standard form in all of
the 99 awards, were as follows:
X.2.1 Unpaid pandemic leave
(a) Subject to clauses X.2.1(b), (c) and (d), any employee is entitled to take up to 2
weeks’ unpaid leave if the employee is required by government or medical authorities
or on the advice of a medical practitioner to self-isolate and is consequently prevented
from working, or is otherwise prevented from working by measures taken by
government or medical authorities in response to the COVID-19 pandemic.
1 [2020] FWCFB 1837
[2020] FWCFB 3561
DECISION
E AUSTRALIA FairWork Commission
[2020] FWCFB 3561
2
(b) The employee must give their employer notice of the taking of leave under clause
X.2.1(a) and of the reason the employee requires the leave, as soon as practicable
(which may be a time after the leave has started).
(c) An employee who has given their employer notice of taking leave under clause
X.2.1(a) must, if required by the employer, give the employer evidence that would
satisfy a reasonable person that the leave is taken for a reason given in clause X.2.1(a).
(d) A period of leave under clause X.2.1(a) must start before 30 June 2020, but may
end after that date.
(e) Leave taken under clause X.2.1(a) does not affect any other paid or unpaid leave
entitlement of the employee and counts as service for the purposes of entitlements
under this award and the NES.
NOTE: The employer and employee may agree that the employee may take
more than 2 weeks’ unpaid pandemic leave.
[2] The above provisions were initially given a period of operation from 8 April 2020
until 30 June 2020. In a decision issued on 2 July 2020,2 the operation of these provisions was
extended until 30 September 2020.
[3] The Full Bench explained the rationale for the award variations in the April decision
as follows:
“[67] To contain the spread of COVID-19 and to ‘flatten the curve’ in order to reduce
pressure on the health system, employees may be requested or required to self-isolate
for 14 days. ‘Self-isolation’ is generally used in Australia to refer to circumstances
both where a person may have been exposed to COVID-19 but is not known to be
infected and where a person has been diagnosed with COVID-19 but is not ill enough
to require hospitalisation (see Dept of Health) — although strictly speaking, the
former is ‘quarantine’ and the latter is ‘isolation’ (see RACGP). In the April 2020
Statement we referred to a ‘regulatory gap’ in the award safety net concerning
employees who are required to self-isolate.
[68] Employees who have contracted COVID-19 may have an entitlement to paid
personal/carer’s leave under the National Employment Standards (NES) (see ss 95–
101 of the Act). But the number of employees able to utilise paid personal/carer’s
leave to cover a period of self-isolation is likely to be limited. And so, while some
employees required to self-isolate may be able to access paid or unpaid leave; for most
award-covered employees this will depend upon the agreement of their employer. If
the employer does not consent then an employee required to self-isolate may be placed
in the invidious position of either contravening public health directions or guidelines,
or placing their employment in jeopardy.
[69] Nor do the statutory protections against dismissal provide a complete solution to
this problem. Unfair dismissal protections do not extend to all employees. A wider
2 [2020] FWCFB 3490
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3
range of employees may be protected from dismissal under the general protections
provisions in the Act, in particular s.352. But, as with paid personal leave, the
protection against dismissal under s 352 may not apply to an employee required to
self-isolate because they have been exposed to someone infected with COVID-19, if
the employee has not tested positive to COVID-19; is not displaying any symptoms;
and is not unfit for work because of personal illness.
[70] The gaps in leave entitlements and protections against dismissal can be addressed,
for employees to whom awards apply, by providing an entitlement to unpaid
‘pandemic leave’ to employees who are required to self-isolate or are otherwise
prevented from working by measures taken by government or medical authorities in
response to the COVID-19 pandemic. As well as providing an entitlement to unpaid
leave to employees who have no existing leave entitlements available to them in these
circumstances, such a new leave entitlement would supplement existing leave
entitlements and constitute a ‘workplace right’ for the purposes of the general
protections under the Act.
. . . .
[74] Importantly, access to unpaid pandemic leave will enable more people to remain
in employment. The proposed entitlement will also support the important public policy
objective of encouraging those who should self-isolate, to do so and thereby limit the
spread of COVID-19 in workplaces allowing businesses to continue to operate.
[75] Further, as the Minister submitted:
‘In this case, the extraordinary circumstances associated with COVID-19, and
in particular the particular risk to security of employment identified in the
Statement justify the measures proposed in the Statement, and will contribute
positively to the 'fairness' and 'relevance' of the safety net represented by the
identified modern awards. It is appropriate they be introduced on a temporary
basis as a specific and time-limited response to the current circumstances.’ ”
[4] The April decision noted that the Australian Council of Trade Unions (ACTU), the
Australian Nurses and Midwives Federation (ANMF), the Health Services Union (HSU) and
the Australian Professionals, Engineers, Scientists and Managers Association (APESMA)
foreshadowed that further measures might need to be taken in respect of “health care
workers” covered by the following awards (Health awards):
Aboriginal Community Controlled Health Services Award 20103
Aged Care Award 2010
Ambulance and Patient Transport Industry Award 20104
Health Professionals and Support Services Award 20105
3 Now the Aboriginal Community Controlled Health Services Award 2020
4 Now the Ambulance and Patient Transport Industry Award 2020
5 Now the Health Professionals and Support Services Award 2020
[2020] FWCFB 3561
4
Medical Practitioners Award 20106
Nurses Award 2010
Pharmacy Industry Award 20107
Social, Community, Home Care and Disability Services Industry Award 2010
Supported Employment Services Award 20108
[5] The Full Bench noted the ACTU’s submission that, in its view, employees covered by
these awards should be entitled to paid leave on multiple occasions. The ANMF likewise
submitted before the Full Bench that front-line health care workers, including nurses, had a
high level of exposure to the COVID-19 virus, were being infected at higher rates than the
general public, and were likely to be required to self-isolate on more than one occasion to
minimise the spread of infection. The HSU made a similar submission in respect of
employees involved in the care of “the most vulnerable members of the community, including
people with disabilities, elderly people, and patients who are sick or immunocompromised”.9
The APESMA also submitted that pharmacists were on the “front line” and should be entitled
to paid leave on multiple occasions. In response to these submissions, the Full Bench
indicated that it would shortly convene a conference of interested parties in order to establish
a separate process to address the issues raised by the ACTU, the ANMF, the APESMA and
the HSU.
[6] A conference was convened to discuss the issue raised by the unions on 14 April 2020.
Following this conference, the President of the Commission, Justice Ross, issued a statement
on 15 April 202010 (April statement) in which it was noted that the ACTU was coordinating
the finalisation of claims in respect of the matter. The statement also included some
commentary about the coverage of enterprise agreements in the areas covered by the Health
awards identified by the ACTU and other unions. We will refer to that commentary later in
this decision.
[7] Following the April statement, the following applications were filed pursuant to s 158
of the Fair Work Act 2009 (FW Act):
Application by the HSU and the United Workers’ Union (UWU) to vary the
Aboriginal Community Controlled Health Services Award 2020;
Application by the HSU, UWU and ANMF to vary the Aged Care Award 2010;
Application by the UWU and the HSU to vary the Ambulance and Patient Transport
Industry Award 2020;
6 Now the Medical Practitioners Award 2020
7 Now the Pharmacy Industry Award 2020
8 Now the Supported Employment Services Award 2020
9 [2020] FWCFB 1837 at [57]
10 [2020] FWC 1956
[2020] FWCFB 3561
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Application by the HSU and UWU to vary the Health Professionals and Support
Services Award 2010;
Application by the Australian Salaried Medical Officers Federation (ASMOF) and
the HSU to vary the Medical Practitioners Award 2020;
Application by the ANMF, UWU and HSU to vary the Nurses Award 2010;
Application by the AMESMA and the Shop, Distributive and Allied Employees
Association (SDA) to vary the Pharmacy Industry Award 2010;
Application by the Australian Municipal, Administrative, Clerical and Services
Union (ASU), the HSU and UWU to vary the Social, Community, Home Care and
Disability Services Industry Award 2010; and
Application by the ASU, the HSU and the UWU to vary the Supported Employment
Services Award 2010.
[8] In addition, Mr Alan Stokes lodged an application to vary the Ambulance and Patient
Transport Industry Award 2020 which essentially mimicked the terms of the application made
by the UWU and the HSU.
[9] The applications were subsequently allocated to this Full Bench for hearing and
determination.
The applications
[10] The applicant unions’ applications, in the amended form advanced at the hearing,
sought that each of the Health awards be varied as follows:
1. By deleting clause X.1 in Schedule X and replacing it with the following:
X.1 Subject to clauses X.2.1(d) and X.2.2(c), Schedule X operates from 8 April
2020 until 28 September. The period of operation can be extended on
application.
2. By deleting clause X.2.1 in Schedule X and replacing it with the following:
X.2.1 Paid pandemic leave
(a) Subject to clauses X.2.1(b), (c) and (d), any employee is entitled to take up
to 2 weeks’ leave on each occasion the employee is:
(i) required by government or medical authorities to self isolate;
(ii) required by their employer to self isolate;
(iii) required on the advice of a medical practitioner to self isolate;
(iv) awaiting the results of a COVID-19 test; or
[2020] FWCFB 3561
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(v) is prevented from working by measures taken by government or
medical authorities in response to the COVID-19 pandemic.
and is entitled to a paid day of leave on each occasion the employee is tested
for COVID-19, save where such test is performed at the employee’s usual
workplace and counted as working time.
(b) Except where X.2.1(a)(ii) applies, the employee must give their employer
notice of the taking of leave under clause X.2.1(a) and of the reason the
employee requires the leave, as soon as practicable (which may be a time after
the leave has started).
(c) Except where X.2.1(a)(ii) applies, an employee who has given their
employer notice of taking leave under clause X.2.1(a) must, if required by the
employer, give the employer evidence that would satisfy a reasonable person
that the leave is taken for a reason given in clause X.2.1(a).
(d) A period of leave under clause X.2.1(a) must start before 28 September
2020, but may end after that date.
(e) Leave taken under clause X.2.1(a) does not affect any other paid or unpaid
leave entitlement of the employee and counts as service for the purposes of
entitlements under this award and the NES.
(f) For an employee other than a casual, leave taken under clause X.2.1(a) shall
be paid at the employee’s base rate of pay for the employee’s ordinary hours of
work in the period of leave.
*See note below
(g) For a casual employee, pay for leave taken under clause X.2.1(a) shall be
calculated on the average weekly pay received by the employee in the previous
6 months, or where the employee has been employed for less than 6 months,
for the duration of their employment.
3. By inserting the following in Schedule X, immediately above “NOTE 1” to clause
X.2.2:
X.2.3 Special leave where an employee contracts COVID-19
(a) If an employee is diagnosed with COVID-19, the employee must
inform their employer of that diagnosis.
(b) Upon being informed of an employee’s diagnosis with COVID-19, the
employer must allow the worker to be absent from work, and not
perform work, without loss of pay, until the employee has had medical
clearance to return to work.
[2020] FWCFB 3561
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(c) For a casual employee, pay for leave taken under clause X.2.3(b) shall
be calculated on the average weekly pay received by the employee in
the previous 6 months, or where the employee has be employed for less
than 6 months, for the duration of their employment.
*See note below
(d) An employee shall not be required by an employer to take personal
leave because of a COVID-19 diagnosis prior to exhausting their
entitlement to special leave under this clause.
4. By deleting the reference to “clause X.2.1 or X.2.2” in “NOTE 1” and replacing it
with a reference to “this Schedule”
5. By updating the table of contents and cross-references accordingly.
[11] In this decision, we consider the claim in the light of the current circumstances of the
COVID-19 pandemic in Australia. Because the claim is effectively brought on an
“emergency” basis, we have endeavoured to issue our decision as soon as practicable after the
completion of the hearing and, accordingly, our reasons are expressed with greater brevity
than they might otherwise have been in a less urgent context.
Statutory framework
[12] The unions’ applications seek the exercise by the Commission of power under s
157(1)(a) of the FW Act, which provides:
(1) The FWC may:
(a) make a determination varying a modern award, otherwise than to
vary modern award minimum wages or to vary a default fund term of the
award; …
if the FWC is satisfied that making the determination or modern award is necessary to
achieve the modern awards objective.
[13] The modern awards objective is set out in s 134(1) as follows:
(1) The FWC must ensure that modern awards, together with the National
Employment Standards, provide a fair and relevant minimum safety net of terms and
conditions, taking into account:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce
participation; and
[2020] FWCFB 3561
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(d) the need to promote flexible modern work practices and the efficient
and productive performance of work; and
(da) the need to provide additional remuneration for:
(i) employees working overtime; or
(ii) employees working unsocial, irregular or unpredictable hours;
or
(iii) employees working on weekends or public holidays; or
(iv) employees working shifts; and
(e) the principle of equal remuneration for work of equal or comparable
value; and
(f) the likely impact of any exercise of modern award powers on business,
including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and
sustainable modern award system for Australia that avoids unnecessary overlap
of modern awards; and
(h) the likely impact of any exercise of modern award powers on
employment growth, inflation and the sustainability, performance and
competitiveness of the national economy.
The case advanced by the ACTU and applicant unions
[14] The ACTU, on behalf of the ANMF, the APESMA, the ASMOF, the ASU, the HSU,
the SDA and the UWU, submitted that the purpose of the applications was to establish
entitlements to paid pandemic leave for employees covered by the Health awards in each of
the following circumstances:
the employee is required by government or medical authorities to self-isolate;
the employee is required by their employer to self-isolate;
the employee is required on the advice of a medical practitioner to self-isolate; and
the employee is prevented from working by measures taken by government or
medical authorities in response to the COVID-19 Pandemic.
[15] The ACTU submitted that the unions’ proposed eligibility criteria for paid pandemic
leave were the same as for the unpaid pandemic leave provisions awarded in the April
decision save that those provisions did not apply where the employer directed an employee to
self-isolate, or where an employee was in self-isolation while awaiting the results of a
COVID-19 test. The separate entitlement that was sought to be established for paid leave for
the duration of any COVID-19 illness was directed at the circumstance where such an illness
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s789gc.html#employee
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#public_holiday
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s789gc.html#employee
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s789gc.html#employee
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s789gc.html#employee
[2020] FWCFB 3561
9
extended beyond a two-week period. The ACTU said that the proposed provisions, if
awarded, would operate for a limited period but that it was intended that this period be
extendable on application or as circumstances demanded it while the matter remained on foot.
[16] The ACTU submitted that the variations sought to the Health awards should be
granted because:
the Health awards cover employees and employers in the health care and social
assistance sectors, who are at a greater risk of transmission from and to other works
and of spillover transmission in the community;
this elevated risk applies not just to those directly caring for patients but also for
personal carers, cleaners, food servers and other support staff;
there is also a higher level of economic risk for employees in that they may be
required to self-isolate for periods of up to 14 days at a time, with no income to
support them, as their work places them at risk of infecting other vulnerable persons;
this elevated level of risk is associated with the essential nature of their work, which
has necessarily continued throughout the pandemic, and has subjected employees to
the higher risk of transmission of the virus and exposure to the virus;
the claim, if granted, would reduce the economic risk faced by employees should
they be required to self-isolate, and provide health and social assistance workers with
sufficient paid leave to ensure that they are not exposed to economic risk should they
become unwell as a result of contracting the virus;
ensuring the economic security of self-isolating workers is part of the public health
response to the COVID-19 pandemic, and the maintenance of a functioning health
and social assistance sector is an overarching justification for paid pandemic leave;
and
if the claim is granted, workers will be less likely to violate self-isolation
requirements due to economic hardship and comply with public health best practice,
and in that way the grant of the claim will contribute to the resilience of the health
and care workforce.
[17] The ACTU submitted that the grant of the claim is necessary to achieve the modern
awards objective in s 134(1). The merit of two weeks’ pandemic leave was established in the
April decision, and the principal additional issue was whether pandemic leave should be paid
leave or not. The grant of the claim, the ACTU submitted, would be consistent with
provisions in modern awards where economic risk associated with vicissitudes inherent to the
nature of the work is allocated to protect an employee’s interest, such as provisions
concerning payment of employees in circumstances of inclement weather in the Building and
Construction General On-site Award and the Wine Industry Award, other provisions for
payment to employees where work cannot be performed in the Road Transport (Long
Distance Operations) Award and the Textile, Clothing and Footwear and Associated
Industries Award, and provisions for accident pay in other awards. The ACTU also pointed to
provisions made for paid special/pandemic leave for public sector employees, including
health sector employees, of the States and Territories. The ACTU’s summary of the
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provisions made in this respect, which was not placed in contest, is reproduced in the
Schedule to this decision.
[18] The ACTU and the applicant unions called evidence from a number of expert and
employee witnesses. Their evidence is summarised below.
Professor Raina MacIntyre
[19] Professor MacIntyre is a public health physician, epidemiologist and academic, and
holds the positions of Head of the Biosecurity Research Program and Professor of Global
Biosecurity at the Kirby Institute for Infection and Immunity at the University of New South
Wales. She was commissioned by the ACTU to prepare an expert’s report concerning various
aspects of the COVID-19 pandemic, including the particular issues arising in respect of the
health and community and related services sectors and measures that might be taken to
ameliorate known foreseeable issues for workers in those sectors.
[20] In her report, Professor MacIntyre summarised the main features of the COVID-19
pandemic as follows:
COVID-19 is spread by the respiratory route as well as by direct contact;
80% of infections are mild or asymptomatic, and 20% are severe;
the average time before seeking medical care is about one week, as symptoms can be
mild;
hospitalised patients tend to be in hospital for an average of three weeks, and the
virus can be detected in body fluids for 20-27 days;
the clinical syndrome includes acute respiratory syndrome and respiratory failure,
and survival is less for people admitted to intensive care or ventilated;
cardiac complications, strokes, embolisms, arrhythmias and disease of other organ
systems such as kidneys can occur;
the pandemic is unprecedented within current lifespans, and the global health,
economic, social and geopolitical impacts are substantial and still unfolding;
Australia has a low case of fatality rates compared to other countries, and the rate is
higher where patients exceed ICU bed capacity, with the age of the population also
playing a role;
Australia has an ageing population, which means a large epidemic here would have a
relatively higher impact;
there were 4 million cases globally by 11 May 2020, and the virus will remain a
threat to every country whilst it is circulating in the human population, with most
experts predicting we will live with the virus for 2-5 years;
[2020] FWCFB 3561
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the virus is difficult to control because (1) it is at its highest infectiousness in the two
days prior to symptoms developing and on the first day of symptoms, and is also
transmissible by people who never develop symptoms; and (2) there is growing
evidence that the virus can be transmitted by the airborne route through fine
respiratory aerosols; and
the virus can contaminate surfaces and areas distant from the COVID-19 patient, and
there is some evidence of blood-borne spread.
[21] Professor MacIntyre said that the risk of outbreaks is magnified in closed, institutional
settings such as health care, aged care and disability care facilities as well as prisons and
detention centres. In health care, treatment of COVID-19 patients and those yet diagnosed
with COVID-19 who present for care, place health workers at particular risk, and Professor
MacIntyre gave the following examples:
in the UK, up to one in five health workers were infected with COVID-19 in at least
two NHS trusts;
in the US, 16% of all infections were in health workers;
in Italy, 10% of infections were in health workers;
transmission from patients to health workers has been documented, with the highest
risk being in workers who perform physical examination, are exposed to patients
during nebulizer treatments and those who have longer exposure to infected patients;
the hospital environment may also be highly contaminated; and
other than direct health risks, the psychological stress for health workers has been
shown to be severe, and healthcare worker suicide deaths have been reported
worldwide, especially in heavily affected countries.
[22] Professor MacIntyre said that the impact of COVID-19 on health and care sectors is
firstly, of increased risk of transmission for any workers within these work settings, not just
those directly caring for patients, but for personal carers, cleaners, food servers and other
support staff; and secondly increased risk of transmission to other workers; and finally,
increased risk of spillover into the community. It is therefore in the best interests of society to
ensure good control of COVID-19, workforce preparedness and heightened disease
surveillance in these settings.
[23] It was observed by Professor MacIntyre that outbreaks have been reported in hospitals,
long term care and aged care facilities, with a high rate of asymptomatic infection, meaning
the extent of transmission may not be realised unless everyone within the facility is tested.
Paramedics are especially at risk because they are the first to see a patient, before a diagnosis
is made, and are within a small, enclosed space with the patient during transportation to
hospital. In the disability and home care sector, carers have very close, personal contact with
the people they care for, including cleaning soiled bedsheets, lifting, helping with toileting
and bathing. Given the transmission of the virus from droplets, aerosols, direct contact,
fomites and even faecal material, such workers are at high risk. Ignoring the needs of any of
these sectors may result in explosive outbreaks, which in addition to the toll on patients,
[2020] FWCFB 3561
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residents and staff will likely spill over into the community and make community control
more challenging. The other setting which is high-risk is Aboriginal medical services, as
demonstrated by the fact that during the pandemic of 2009, Aboriginal communities were
severely affected and not well catered for.
[24] The “pillars” of epidemic control were identified by Professor MacIntyre as:
1. Identifying all cases of infection and isolating them. Testing is the means to
identifying cases.
2. Contact tracing and quarantine of contacts for the incubation period (2 weeks).
3. Social distancing measures such as spatial separation of 1.5 m or lockdowns.
4. Travel bans.
5. Preventive measures such as face masks and personal protective equipment
(PPE) or vaccines.
[25] Professor MacIntyre said that, in the absence of a vaccine, the other measures outlined
above were critical and had to be used in combination. Because health system and
institutional settings are high risk for outbreaks, people working in these settings are
vulnerable to infection and may be required to go into quarantine if exposed. Having workers
ill and other workers quarantined can severely impact the workforce capacity, and this may be
compounded by a shortage of PPE (as has occurred in the United States and elsewhere).
Surgical masks and respirators are the best methods of respiratory protection, with masks
being less effective than respirators.
[26] The ACTU supplied Professor MacIntyre with copies of the statements of its
employee witnesses for the purpose of preparing her report, and in relation to these she said
(footnotes omitted):
“I have been provided with the testimonials of workers from a range of sectors,
including health care, pharmacy and disability care, which confirms to me the
vulnerability of these workers to potential infection, and also to the economic and
financial impacts of the COVID-19 pandemic. Some have health risk factors that make
them vulnerable to serious complications of COVID-19, and some have close, direct
contact roles which place them at increased risk of infection. Some of them may lose
their jobs and face difficult decisions on working in the face of risk due to personal
risk factors, or losing their income.
Uncapped paid leave for people in quarantine or under treatment is a minimal
requirement for all essential workers in the health sector, disability sector and the other
sectors represented in the testimonials I have been provided. If they get ill, treatment
of COVID-19 may be prolonged, for 3 weeks or longer, and recovery may take even
longer, given the evidence of long term effects of the infection, such as on the
cardiovascular system. Respect and care for the needs and wellbeing of the health
workforce is key to maintaining a functioning workforce during the pandemic, which
may last for 2 or more years. Without this, there is a risk that people may be unwilling
to work during a pandemic of a serious disease such as COVID-19. Some argue it is
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morally permissible to allow health workers to abstain from work during a COVID-19
epidemic to protect their families. The tendency toward refusal to work may be
increased if health workers felt their needs and concerns were being neglected,
especially in the context of PPE shortages and the additional risk this poses to front
line health and care workers.
Central to responding to the health impacts of the pandemic is the resilience and
capacity of the health system and health workforce, as well as other essential
workforces such as aged care and disability sectors. Caring for the needs of the health
and care workforces is in the public interest, and will improve the resilience of the
health system in the event of a second wave. … it is possible, if not likely, that we will
face further epidemic periods in Australia. This will require strong health systems and
adequate protections for health and care workers. It is important therefore to take a
long-term view to strengthening our health systems and care sector.”
Dr Natasha Cortis
[27] Dr Natasha Cortis is a Senior Research Fellow at the Social Policy Research Centre in
the Faculty of Arts and Social Sciences at the University of New South Wales. Dr Cortis was
commissioned, before the COVID-19 pandemic in Australia, by the HSU, the ASU and the
UWU to design a survey and prepare a report about the experiences of disability workers and
the challenges they confront in the context of the National Disability Insurance Scheme
(NDIS). The survey was unconnected to the current proceedings, but the data collection
period coincided with the period in which social distancing measures were introduced and
implemented in Australia, with the result that many workers provided comments in the survey
highlighting the issues they faced in the context of COVID-19. Dr Cortis prepared her report
(in conjunction with Dr Georgia van Toorn) on the experiences of disability support workers
in relation to COVID-19 on the basis of survey answers provided by 2,341 disability support
workers.
[28] The key findings of Dr Cortis’ report were as follows:
There is an urgent lack of PPE being supplied to staff and clients, and many workers
feel their organisation’s safety protocols have been inadequate in the context of
COVID-19.
There are widespread perceptions that the disability workforce is being dangerously
overlooked in pandemic response, and many workers are worried about the ongoing
impacts of a lack of planning in their organisation and for the disability sector as a
whole.
Workers have been particularly worried about day programs and community access
activities remaining in operation; group homes remaining open to other workers
delivering NDIS services and support to residents, along with visitors; and disruption
to clients’ routines and activities, which has created additional risks to client
wellbeing and safety.
Staff are extremely anxious about the situation, and workforce issues and additional
workloads have made it difficult to respond to heightened health and safety needs.
[2020] FWCFB 3561
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Some workers have lost jobs or shifts and are uncertain about the future of their
work, and many expressed concerns about their inability to effectively self-isolate,
and the financial impacts of doing so.
Alan McLean
[29] Alan McLean is a sessional senior lecturer in the Department of Health Care
Management, College of Business, Government and Law at Flinders University. He was
engaged by the UWU to prepare an expert’s report concerning COVID-19 pandemic leave
entitlements in the Ambulance and Patient Transport Industry Award 2020, which is based on
research undertaken by him for his doctrinal thesis concerning ambulance infection
prevention and control for patient and staff safety. In his report, Mr McLean noted that it is
widely accepted that healthcare workers are at an increased risk of acquiring an infection at
work as well as being vectors for transmitting such infections to patients, and that such
infections occur in all healthcare settings including the ambulance prehospital care
environment. In Australian acute care hospitals alone, approximately 200,000 patients a year
acquire a healthcare acquired infection (HAI), which makes HAIs the most common
preventable adverse event affecting patients in the Australian healthcare system. HAIs also
present a risk to the health and safety of staff working in the healthcare system.
[30] Mr McLean referred to recent research on COVID-19 as indicating that it is
predominantly a respiratory infection which is thought to be spread by contact, droplet and
airborne routes. He observed that healthcare workers are at particular risk of acquiring an
occupational infection during infectious diseases outbreaks such as COVID-19, and in some
outbreaks healthcare workers have been the population most affected. Research supports the
proposition that due to the environment in which paramedics work, they are at greater risk of
contracting an occupationally acquired infection than other healthcare workers, particularly in
a pandemic. The main factors that contribute to this risk are:
in the ambulance setting, the cramped spaces mean that paramedic are usually under
one metre away from the patient, which is less than the recommended minimum
physical distancing requirement of 1.5 metres for respiratory infections, and the
same applies to stretchering patients;
paramedics provide invasive and complex care in uncontrolled environments,
including the requirement to use aerosol-generating procedures in the ambulance,
and dealing with extreme weather events, violent and aggressive people and
environmental and physical hazards which may compromise PPE;
unprotected contact with infected people, in circumstances where paramedics are
operating with insufficient information or patients have yet to be identified as having
COVID-19 because they are asymptomatic, presymptomatic or otherwise;
paramedics perform clinical procedures in potentially contaminated environments
that place them and their patients at a high risk of exposure to environmental
pathogens as well as blood and other bodily fluids;
because paramedics usually have little information about a patient or their medical
history prior to contact, full PPE may not be applied until the full situation is known,
[2020] FWCFB 3561
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and advice as to the PPE and hygiene measures to be applied to patients with
possible COVID-19 may be impracticable in the pre-hospital setting; and
access to hand hygiene facilities may be difficult outside of hospitals in emergency
patient contact situations.
[31] In relation to patient transport staff, Mr McLean said that while they work in a more
controlled environment in that their patients are generally pre-diagnosed and any treatment is
usually already commenced, they are still exposed to many of the same risks as emergency
paramedics. These include working in the confined space of an ambulance, inadequate PPE
and the risk of encountering an undiagnosed asymptomatic or presymptomatic case.
Professor Simon Wilcock
[32] Professor Simon Wilcock is a member of the ASMOF and is currently employed as
the director of primary care and well-being services at MQ Health. MQ Health is a private
non-profit integrated health science centre. It integrates the Macquarie University Hospital,
the Faculty of Medicine and Health Sciences and clinical components of the Faculty of
Human Sciences, and provides a wide range of clinical and research services. He has both a
clinical and academic role. His clinical role is as a general physician for MQ Health.
[33] Professor Wilcock was responsible for setting up the first respiratory clinic, the
Macquarie Park respiratory clinic, and the walk-in specialist emergency clinic. The clinics
were set up in response to the perceived surge in COVID-19 cases being experienced from
early March in New South Wales and around Australia. His evidence was that the
Commonwealth Government provided funding to establish a number of clinics to provide
testing for COVID-19. The testing was originally limited but is now generally available to
anybody that considers they have symptoms. At the time of the hearing his evidence was that
there had not been a positive COVID-19 result from the Ryde clinic since 9 April. He stated
that this reflected that community incidents in this part of Sydney had dropped significantly.
[34] He stated they are testing up to 100 people a day at that clinic and have just extended
the hours into the evening because of the demand. The number of positive cases was less than
half a percent, and the low rate of positive results is reflected right around the country. The
clinics are partially staffed by medical student volunteers who wear PPE. He considered the
work in the clinic and the hospital made his risk of contracting COVID-19 equivalent to that
of a health care worker in the public system. However he considered it to be a safe
environment given the relevant mitigation of risks such as by training in PPE, appropriate
cleaning, and COVID-19 policies and procedures around transmission-based precautions
dealing with infection prevention and control. He also stated he had undertaken to interacting
with his patients via telehealth. His evidence was that the potential surge in patient care
related to the pandemic did not materialise and, at the present time, hospitals were still
relatively quiet. MQ Health did not have a form of special or additional leave for COVID-19
related isolation.
Angela Anderson
[35] Angela Anderson is employed as a Pharmacy Assistant for National Pharmacies and is
a member of the SDA. She works on average 5 days per week. She rents a house with her
nephew who is 49 years old. She has previously had breast cancer and currently has a
[2020] FWCFB 3561
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condition called Myelofibrosis. She said if a variation is granted for paid pandemic leave, she
would be able to receive pay for the period of time she has taken off work and continues to
take off work due to her health vulnerabilities. She said she has had to make the difficult
decision to weigh up her health and financial security and chosen to remain at home due to the
grave medical consequences and much increased risk faced when at work. She said she now
faces significant pressures to pay bills and support herself, and has been paid out all of her
entitlements from National Pharmacies.
Michael Van Emmerik
[36] Michael Van Emmerik works for the Westhaven Association as a disability support
worker, and is a member of the ASU. He assists two residential supported independent living
houses for adults who are 55 and 65 years of age and have physical and intellectual
disabilities and mobility issues. He averages approximately 82 hours work per fortnight
including sleepover shifts and awake night shifts. He stated he has not worked in this
employment long enough to accrue leave entitlements of any significance, and that living
without income for a period of isolation or illness for 14 or more days would be financially
difficult for his family.
[37] Mr Van Emmerik gave evidence that, on 23 March 2020, he was requested at short
notice to fill in for a colleague on a night shift. He stated he was contacted an hour before the
shift commencement and requested to support a resident who had been taken to hospital
earlier that afternoon. He was not provided with any detail about the resident’s health or why
they were being taken to hospital. He was required to go to the resident’s house and pick up
some items and take them to the hospital, and then he needed to support the resident with their
feeding and changing of incontinence pads and general care. This was initially done by him as
a support worker, and was then transitioned to the hospital staff. He returned home after this
shift and visited his daughter, who had a newborn baby, and went about his usual business at
home and in the community. The next day, he stated, he was contacted, requested not to
attend his shift the next day and self-isolate for 24 hours as there was a possibility that the
client he had assisted in hospital had symptoms of COVID-19. He was advised over the next
two days to stay at home and self-isolate as there had been no results from the resident’s test.
He was told he would be paid for the shifts he was requested not to attend work whilst
awaiting the test result.
[38] Mr Van Emmerik said that on the fourth day of self-isolation he read an email from
the CEO which stated that a resident of Westhaven was critically ill in hospital with a positive
COVID-19 diagnosis. It was subsequently confirmed to him that this was the patient he had
been supporting. He said that he felt very distressed that he may have passed on the virus to
his wife or his daughter and her newborn baby, and he was also uncertain as to whether he
had a job. One of his sons left their home to stay with a friend during his period of isolation.
His wife, who is employed by NSW Health, immediately notified her employer and was given
paid leave. The group home in which he had been working was closed and the residents
relocated to another house while being professionally cleaned and fumigated. Eventually after
14 days he was cleared to return to work.
[39] While he was off work, Mr Van Emmerik suffered significant financial difficulty. He
had applied for Centrelink support as he was uncertain if he would be paid. However after he
returned to work he was advised that his employer had decided to pay for the time he was
required to spend off work.
[2020] FWCFB 3561
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Jason Carleo
[40] Mr Carleo is employed as a permanent full-time disability support worker at Activ
Foundation and is a member of the UWU. He is covered by an enterprise agreement. His
duties include personal and domestic supports such as cleaning, personal hygiene, showering,
dressing and preparing meals, as well as accompanying clients to organised activities or
engagements outside the home and entertaining at home. Both of his clients have challenging
behaviours and as a result, physical interactions between him and his clients can be
unpredictable. His clients have limited capacity to practise preventative measures such as
increased hygiene practices unless prompted to do so by a support worker.
[41] Mr Carleo gave evidence that he took 12 months off work in 2018 and returned to
work in January 2019, which exhausted all his accrued paid leave. His wife is a teacher and
limited in her ability to socially distance and is concerned about what will happen if he or his
clients get sick as he is unable to socially distance due to the nature of his work. He said that
he needed to know that he has financial protection if he needs to stay at home, and that the
people he supports need to know that he will not be at work when ill. He said he cannot work
from home and his clients need 24/7 care.
Mira Blacker
[42] Mira Blacker is a qualified pharmacy assistant and cosmetician employed at Terry
White Chemmart at Towong in Queensland, and is a member of the SDA. She works 38 hours
a week over six days including the weekend. She lives with another person who has
compromised health. Ms Blacker gave evidence that, in her view, pharmacy assistants and
pharmacists are on the front-line providing goods and healthcare services to the community.
She said that in that role, employees in the pharmacy have to deal with people who are
unwell, and there has been an increased number of customers during the pandemic which has
increased the risk of contracting the virus. Her evidence was that she served a total of 1777
customers between February and April 2019, whereas in the same months in 2020 she has
served a total of 4564 customers. This is largely a result of the pharmacy rostering on less
staff during the pandemic. She said that paid pandemic leave would mean she would be able
to remain away from work if she was ill and not take the risk of infecting others or her family.
Romualda-Jo Racciatti
[43] Romualda-Jo Racciatti is a registered nurse employed on a casual basis for the Bulleen
Medical Centre and is a member of the ANMF. Notwithstanding that she is engaged as a
casual employee, she works fixed hours for three days a week. Her duties primarily involve
undertaking at-home health assessments for clients over 75 years old. Her evidence was that
she undertakes on average 10 home visits per week, and this usually includes a lot of close
contact with patients. However, since the pandemic began she has been undertaking these
assessments over the phone when she knows the patient well and the assessment is
straightforward. Ms Racciatti said that she is conscious of the vulnerability of older people
and takes precautions when visiting their homes.
[44] Ms Racciatti gave evidence that in April 2020 one of the GPs in the practice
contracted COVID-19 from a friend who had returned from the UK, although he did not get
sick. Once he was diagnosed the medical centre shut down for two weeks, and consequently
[2020] FWCFB 3561
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she could not work during this period and received no income. She stated she stayed in her
bedroom for a couple of days whilst awaiting the test results. Her test returned negative and so
she could then move around the house. She said that if she had to go into self-isolation again
it would have a financial impact on her, and the award variation being sought would greatly
assist given that as a casual employee she has no leave entitlements and if she does not work
she does not receive any payment. In addition, paid leave would help protect others from the
risk of spreading infection, particularly in her work where she has contact with many people
who are elderly or have chronic health conditions.
Nicole Gigg
[45] Nicole Gigg works as a Pharmacy Assistant Grade 3 at Great Lakes Pharmacy,
Tuncurry NSW, on a full-time basis, and is a member of the SDA. She is responsible for the
inventory in the front of shop and the CPAP/Weight Loss clinics in the store. She provides
customer service, taking/handing out prescriptions, cash register service, dealing with
customer enquiries and triaging customers before passing them on to the pharmacist, requiring
close contact with customers at all times. As part of her role she is in contact with the majority
of stock items that enter the pharmacy including the dispensary. She said that due to the age
of customers, customers still made cash purchases and they have had to change how staff
engage with customers, particularly for vulnerable customers who want to bring in their
scripts, to more home based delivery service. She said that while she is happy with the
protective equipment made available to staff, the personal nature of some enquires means a
1.5 metre distance for a conversation is not always possible which puts the staff at risk.
Customers regularly fail to follow social distancing rules and hygiene practices, particularly
elderly customers. This includes coughing without covering mouths, coughing into hands then
touching fixtures/counters, failure to sanitize hands, and gathering in groups. She said she
had some customers who stopped practicing social distancing when in the store and need to
be reminded of this as reported COVID-19 cases dropped.
[46] She said she is concerned she will catch COVID-19 and take it home, risking the lives
of her family. She said that her mother is 71 and has type 2 diabetes and high blood pressure,
and her brother is intellectually disabled with an extremely limited capacity to maintain good
personal hygiene practices or follow social distancing rules. He cannot communicate and she
is concerned she and her mother would not be able to identify COVID-19 symptoms. Her
mother is her brother’s full-time carer and if she fell ill, Ms Gigg would need to take leave to
assist with his care.
[47] She said she has not had to take much personal leave during her employment. She said
an entitlement to paid pandemic leave would assist if she had time off work due to exposure
to the virus as her current accrued personal leave would be available to her if and when she
needed to be able to assist in the care of her brother. Ms Gigg said the pharmacy had
increased staff turnover in the last 12 months and a number of new employees would only
have a small amount of accrued leave, and paid pandemic leave would assist them. She said
one staff member had to access a large amount of their paid leave entitlements last year
because of the bush fires, and pandemic leave would provide them some financial security if
they were required to take time off work. She said that she would be more likely to get tested
if she was symptomatic knowing that the staff around her would have access to paid leave if
she was to test positive.
Louise Crowle
[2020] FWCFB 3561
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[48] Louise Crowle is a Personal Care Worker for Blue Care Community Care in Ashgrove
in Brisbane and is a member of the UWU. She is currently employed on a permanent part-
time basis. Ms Crowle gave evidence that the nature of her work generally requires her to
enter private residences and assist with client’s personal and domestic needs, and the nature of
her work means close personal contact with clients, other household members and surfaces
within the client’s home is unavoidable. She said she works remotely and has minimal face to
face contact with other workers.
[49] Ms Crowle said that she is generally healthy but had mild respiratory problems as a
child and, when ill, she will often develop a cough that requires medication. She said she has
two elderly parents aged 85 and 83 and she assists her sister in caring for them (her sister is
the primary caregiver). She said she would visit her parents prior to COVID-19 on her days
off. She said that in early 2018, both her parents were hospitalized and during this time, she
visited as often as she could to assist with their care, attend their medical appointments and
provide general support. She said that she was recently tested for COVID-19 due to a cough
and, while she tested negative, she was directed to stay home for a week by her doctor. She
said she had no sick leave and had to use annual leave for this absence and, once she
exhausted her annual leave, she would have to take leave without pay if she fell ill. Ms
Crowle expressed the view it is unfair to require staff to use annual leave if they are ill as it is
not there to be used for this purpose but rather for staff to take a break.
Rosemarie Bilyk
[50] Rosemarie Bilyk is employed as a full-time Pharmacy Assistant Level 1 at Healthline
Pharmacy Wynyard and is a member of the SDA. Her evidence was that prior to the pandemic
she worked regular shifts from 10:30am to 6:30pm Monday to Friday, but the pandemic has
had a detrimental impact on the business and resulted in her now only working 8:00am to
4:00pm on Thursday and Friday. She has been required to use her annual leave for the other 3
days per week, and her annual leave will run out soon. She said she has not been told if the
business is eligible for JobKeeper, and if not, she will be in financial distress. Ms Bilyk said
she has not been able to see her family due to social distancing and if she was able to, she
would not because of the high risk of her contracting the virus and spreading it to them. She
said her father is in his 70s and is a diabetic, her mother is in her 60s, and her brother lives
with her parents.
[51] Ms Bilyk gave evidence that at work she is constantly dealing with customers, many
of whom have symptoms. She said many customers are tourists that have poor English and
sometimes these customers cough in front of her to demonstrate their symptoms because they
cannot explain them clearly. She said there is a coronavirus testing centre near the pharmacy
and she has had at least 2 customers come to the pharmacy to buy things immediately after
they have been tested and told her they had been tested. She said she believes she will
contract COVID-19 while working and has come to accept this. She said that if she had an
entitlement to paid pandemic leave she would be able to not attend work if ill and not take the
risk to infect others or her family. She said there are pressures to work to pay her bills and
have an income. She said she has 2 weeks of accrued personal leave. She said she is not sure
if she would get tested if she contracted symptoms because it would cause turmoil with other
staff, particularly those who do not have enough leave or any leave entitlements, and she is
afraid she would be bullied by other staff if the store closed due to her testing positive and
other staff being financially disadvantaged as a result. She said she is concerned about other
[2020] FWCFB 3561
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vulnerable staff, like a colleague who is a parent with a mortgage and what would happen to
her if she lost her income. She said that, from talking to other pharmacy workers, there are
many who share this same sentiment.
Binu Matthew
[52] Binu Matthew is a qualified care worker employed by Minda Incorporated as a
Pathway Session Lead on a part-time basis, and is a member of the UWU. He supports people
with disabilities in the Pathway Program, which is a day care service for disabled persons
whereby they attend during the day and undertake activities such as swimming, cooking,
bowling etc. He said he feeds, toilets and assists the clients carry out the activities while they
are there and it is not possible to socially distance.
[53] He said he works 70 hours per fortnight from Monday to Friday, 8:30am to 4:00pm
each day, and earns about $3,400 per month after tax, and his wife who works as a nurse at a
private hospital earns $4,800 per month after tax for a household total of $8,200 per month.
He said household expenses are at least $6,019 per month including mortgage, personal loan
repayments, food, insurance, rates, school fees, childcare and petrol. He said if he was
required to take unpaid time off work due to COVID-19 he is not sure how his family would
manage. He said he has about 24 hours of personal leave accrued and about 94 hours of
annual leave, and finds himself stressing more about money because of COVID-19. He said
he is worried about his children or wife getting sick and passing it onto the rest of the family,
and both he and his wife being unable to work. He said he wants to be as cautious as possible
to protect the vulnerable people he works with, but is feeling pressure to support his family
financially. He said access to paid pandemic leave would alleviate a lot of the stress and
pressure and help avoid financial difficulty should he become unwell or have to self-isolate.
Rani Sebastian
[54] Ms Sebastian is currently employed as a Level 1 Registered Nurse at Jesmond Aged
Care Facility and is a member of the ANMF. She is employed under the Nurses Award 2010.
Ms Sebastian stated that she is the only Registered Nurse on duty at night and has full
responsibility for the whole facility, which currently has approximately 80 residents. In her
role she has physical contact with the residents in a range of ways. She is responsible for
dressing wounds, if a resident develops one during the night. She is also responsible if a
resident becomes unwell, is injured or is agitated during the night. Ms Sebastian supervises
and assists the nursing assistants during her shifts. She stated that the nursing assistants’ role
requires a lot of direct physical contact with the residents.
[55] Ms Sebastian lives with her husband and two adult children. She said her husband
works as a casual employee and has been without work since mid-March due to the impact of
COVID-19. Ms Sebastian stated that she is currently the only person in the household with a
regular source of income. She stated that she is supporting her husband and two children.
Both Ms Sebastian and her son are asthmatic. Ms Sebastian stated that in February 2020 she
and her husband travelled to India to care for her elderly father in-law. Upon her return to
Australia she was directed by her employer to self-isolate for 14 days and receive a medical
clearance prior to returning to work. Ms Sebastian said she was required to use her personal
carers leave and sick leave to cover the 14-day self-isolation.
Kairstien Wilson
[2020] FWCFB 3561
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[56] Kairstien Wilson is the Principal Legal Practitioner of AED Legal Centre (AED),
which provides legal and systemic advocacy services in the areas of employment and
education for people with disabilities and receives funding from the Federal Government. Ms
Wilson stated that she has represented thousands of workers with disabilities over the course
of her career, and that AED represents approximately 300 clients at any one time. Many of the
clients have worked in Australian Disability Enterprises (ADEs). ADEs are organisations with
charitable status that provide supported employment for people with disability. ADEs
typically engage employees in tasks such as packaging, assembling, sewing, recycling, garden
maintenance, cleaning and laundry services.
[57] Ms Wilson stated that people with disabilities have been identified by the Australian
Government and World Health Organisation as a population more likely to be impacted by
the COVID-19 pandemic. This population is more likely to be significantly impacted for
reasons such as that people with disabilities suffer a higher rate from chronic health
conditions including impaired respiratory function and immune system function, heart disease
or diabetes. They are also more reliant on medical and social services such as at-home carers
and the provision of private transport to essential services such as medical appointments. This
group may also face barriers to accessing or understanding public health information and are
more at risk of being socially isolated from the rest of society, and government mandated
requirements for social distancing may exacerbate these risks.
[58] Ms Wilson stated that due to the nature of tasks and workplace environments at ADEs,
such as packaging and assembling, it is not feasible for the vast majority of supported
employees to work from home. As people with a disability have been identified as a particular
at-risk group during the COVID-19 Pandemic, ADEs need to take proactive and strong
measures to ensure the health and safety of their employees. Ms Wilson stated that these
measures could include identifying individual employees who may be at an increased risk
from the disease due to their disability and health conditions, and ensuring additional
consideration is given to making sure they are not exposed to the virus at the workplace.
Additionally, it is necessary to raise awareness of how the disruption in social services may
affect supported employees, including supported employees facing barriers to transport to
work, and to identify supported employees who are at risk of being socially isolated or
suffering from mental health issues during the pandemic.
Robert Habel
[59] Robert Habel is employed as a Coordinator and Community Mental Health Support
Worker by Uniting SA at Level 6 under the Social, Community, Home Care and Disability
Services Industry Award 2010, and is a member of the ASU. Mr Habel is responsible for co-
ordinating a team of five Community Support Workers and has a case load of 6 clients which
he works with on achieving psycho-social goals and maintaining their health and routines. Mr
Habel stated that Community Mental Health Support Workers in his program are vulnerable,
in that they are required to support, and case manage, up to 13 clients each, working in
people's homes and local communities. These often unpredictable locations lead to a higher
risk of infections than if he worked with clients in office-based situations. He stated that his
staff are in contact with the insides of client's homes, their children, other family members
and friends. They visit a range of places that are also unpredictable in maintaining infection
control such as GP clinics, hospitals and community centres where they mix with large groups
of often vulnerable people due to their illnesses and ages.
[2020] FWCFB 3561
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[60] Mr Habel stated that many of the staff working in his sector are part-time and casual
employees, who live pay check to pay check, and cannot afford to take time off without pay.
Mr Habel stated that his employer has recently agreed to 14 days of paid Special Leave for
staff affected by COVID-19. He stated that this announcement was welcomed by staff as it
provided more security around the safety of staff, clients and the community. Mr Habel stated
that extra paid pandemic leave will be important in providing staff with options to rest and
isolate if unwell, without the fear of losing income, or the fear of pushing on when unwell and
magnifying the possible spread of illness. He stated that if the claimed variation is made in the
award, there will be less pressure on staff to come to work out of fear of losing income, or
being forced to take recreation leave if sick leave has expired. Currently there is a temptation
to work with mild symptoms which can lead to further infection to other staff and vulnerable
clients.
Nicholas Gold
[61] Nicholas Gold is employed by Australian Unity Group Services as the Senior
Employee Relations Consultant. Australian Unity operates a range of businesses, and is an
established provider of aged care retirement and home-care services. He gave evidence that in
April 2020, Australian Unity implemented a special leave policy in response to the COVID-
19 pandemic. He stated that Australian Unity recognised that the pandemic was a unique
situation and therefore they had created special leave arrangements to support their employees
during this time. This special leave arrangement allows employees to be absent from work for
reasons outside of their control that resulted from extraordinary circumstances and that are not
otherwise covered by other types of leave. The special leave is available for the equivalent of
up to 10 working days and is applicable for full-time, part-time and casual employees. The
leave may apply where an employee is required to self-isolate and has been tested for
COVID-19 and found to be negative. It may also apply for an employee who is required to
self-isolate and has no personal leave balance available, but will not apply for employees who
chose to travel locally or internationally. The special leave can be taken at half pay to extend
the duration. The special leave can only be received once.
Lyndelle Potter
[62] Lyndelle Potter is employed in a community pharmacy as a casual pharmacy assistant
(dispensary technician) and is a member of the SDA. Her main duty is assembling Webster
packs (multi dose packs of medication) to assist the elderly. She lives with her elderly mother,
who has health complications and requires support and assistance with a number of daily
chores. The pharmacy she works in has placed markings to assist in social distancing as well
as plexiglass or sneeze screens at the dispensary and checkout. They also have an alarm that
sounds every 15 minutes to remind employees to sanitise their hands. The pharmacy has also
provided facemasks to staff.
[63] Ms Potter said that, when explaining medication packs to customers, she is required to
interact on a face-to-face basis with a number of elderly customers who have difficulty
hearing and poor eyesight and are not always compliant with social distancing. She has also
seen customers openly cough in the pharmacy. She is concerned about possible exposure to
the virus at work and then bringing it home and infecting her mother and partner. She is also
concerned that if she was required to self-isolate or if she was infected with the virus that she
would have to take time off work and have no income.
[2020] FWCFB 3561
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Dr Andrew Cronin
[64] Dr Andrew Cronin is a registered medical practitioner and a member of the ASMOF.
He is currently employed as a primary healthcare and aeromedical retrieval physician at the
Royal Flying Doctor Service (RFDS), Queensland section, and is covered by an enterprise
agreement. He gave evidence that the RFDS has continued throughout the pandemic, but
employees have received often unclear and frequently changing instructions. He stated that
masks, gowns, overalls and gloves have been provided and social distancing required in
waiting rooms, but there has been no triage of patients or taking of temperatures.
[65] Dr Cronin said that there have been no confirmed cases of COVID-19 amongst
patients of RFDS’s clinics. There has been one suspected contact amongst staff performing
aeromedical retrieval work. This was a pilot who had flown on two night time retrievals and
whose daughter was being tested for COVID-19. The pilot was instructed not to fly until he
had been tested and had tested negative to COVID-19, and was placed on administrative
leave. The doctor and nurses who had flown with this pilot were not required to self- isolate
but were taken off-line. This was because the pilot was asymptomatic and was not yet a
confirmed contact of someone with COVID-19. On approximately 30 March 2020, a
colleague retrieved a patient on the New South Wales/Queensland border with upper
respiratory symptoms. The patient was flown to a large regional hospital without precautions.
Following this event, the doctor, nurse and pilot needed to be isolated. The doctor was taken
offline and Dr Cronin had to cover his shifts until a negative test came back.
[66] Dr Cronin stated that he has frequently enquired about whether he would receive paid
leave if he or a patient acquired COVID-19, or if he would receive workers’ compensation,
but has been unable to receive a response to his queries. He said that the pandemic has caused
significant implications for the RFDS workforce and that any clinical staff who are aged over
60 with significant medical co-morbidities are not allowed to undertake retrievals on
respiratory patients. This has resulted in him having to do more shifts. He stated that he
recently worked in excess of 10 days over a two-week period to cover a colleague aged over
60.
Witness MK
[67] MK is a member of the ASU, and is employed as a social worker at the Bonnie
support services rapid response domestic violence team under the Social, Community, Home
Care and Disability Services Industry Award 2010. She gave evidence that her role is to
provide support to women as they escape domestic violence, which requires her normally to
work in the office at the refuge, which provides shared accommodation for women and
children. However it is necessary for her to visit the two refuges and new residents, and there
have often been times when she has been needed to visit a client in a hotel or motel and to
provide women with vouchers or food because they are in crisis.
[68] MK said that she relies on her parents to provide after-hours childcare for her three-
year-old daughter and she has a concern that, if she became ill with COVID-19, this might be
passed to her parents, who are extremely vulnerable to infection. She has endeavoured to
avoid close contact with clients, however such contact may be necessary because clients often
have complex needs and are distressed and their children will touch her. Her employer tries to
screen residents as to whether they have come into contact with someone who is ill, but she
[2020] FWCFB 3561
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was aware of at least one instance where a woman withheld information from the service
because she feared that she and her children would be turned away. In addition, in another
case a referring agency did not provide information to them about the health of a new referral
and that that woman needed to be taken to hospital with symptoms of a COVID-19 infection.
MK said she was concerned that if she became sick or was required to self-isolate and take
leave without pay (given her low levels of available sick leave) she would be under financial
pressure to pay her bills.
Witness KD
[69] KD is a permanent part-time home care worker employed Australian Unity, and is a
member of the UWU. She works with high-need disability clients and assists them with
showers, dressing, toileting and ensuring that the client has taken their medications, as well
with shopping and housework and in some cases dealing with the client’s social isolation. She
would usually see between six or seven clients per day. She gave evidence in her witness
statement that she lives alone and suffers from bronchitis, uses a puffer, has previously
experienced pneumonia and is susceptible to colds and flus. She cares for her elderly mother,
who lives 30 minutes away by car, and also has an elderly father who lives in a nursing home
and suffers from dementia and Alzheimer’s disease. KD said that she lives on a very tight
budget and is reliant on her income as a care worker.
[70] KD’s evidence was that the pandemic has caused her concern because in March 2020
she obtained a medical certificate for work as she had had two biopsies on her thyroid and
was experiencing a sore throat. Consequently she was told to self-isolate and could not work
for 14 days. After 14 days she was told to have a COVID-19 test as she was a care worker and
told to further self-isolate. The test was negative but, as at 4 May 2020 she was not back at
work as she was still experiencing cold and flu symptoms. As a result, she stated she has been
hesitant to visit her elderly mother and father. Australian Unity had given her special leave to
cover her absence, which meant that she could self-isolate and there was no incentive for her
to go to work.
Alex Leszczynski
[71] Alex Leszczynski is a Senior Industrial Officer with the HSU in Victoria. Mr
Leszczynski gave evidence that the Health Professionals and Support Services Award 2020
covers the majority of his members, but with the majority of those being subject to enterprise
agreements. Significant pockets of members are award-reliant, such as private radiology
medical imaging. Much of the work performed by these employees may present a risk of
infection; for example sonographers are required to be in close proximity to their patient. Mr
Leszczynski said that while PPE is sometimes provided to such employees, there is a risk of
infection if one of these employees unknowingly scans people with COVID-19. Accordingly,
in his view, the HPSS Award needs to include paid pandemic leave so that any employees
who may have been exposed to COVID-19 can self-isolate and, if they do develop the
disease, can take paid leave without having to access their existing personal leave. He referred
to members at Capital Radiology having been informed that if they are required to self-isolate
they are required to take annual leave or long service leave and, if these are unavailable, to
take leave without pay.
Jennifer Madden
[2020] FWCFB 3561
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[72] Jennifer Madden is a qualified pharmacist and member of the APESMA. She currently
undertakes medication reviews as a casual employee. This work is undertaken at clients’
homes or in nursing homes. She is over 70 years of age, and she gave evidence that both her
and her husband suffered from hypertension and other health issues. She said the grant of the
unions’ applications would allow her not to attend work if she is ill and not take the risk to
infect others or her family. She stated she has no current personal leave entitlements and has
pressure to pay her bills and receive income. She was unable to perform her normal work
from the middle of March 2020 until the end of April 2020, when medication reviews by
teleconferencing were introduced. Ms Madden said she is now going back to clients’ homes,
often in circumstances where the clients have taken no precautions against infection.
Lauren Hepher
[73] Lauren Hepher is a qualified intensive and extended care paramedic employed by
Ambulance Tasmania, and is a member of the HSU. She gave evidence that ambulance work
is dangerous and undertaken in an uncontrolled environment, with often limited information
available. She said that the risk of transmission of COVID-19 is reasonably high in the work
environment there, particularly in circumstances where paramedics have to enter a patient’s
home where there is a potential for the virus to be on multiple surfaces within the home. The
work also requires close proximity to the patient. Paramedics had been required to work in
north-west Tasmania, where there was recently a COVID-19 outbreak which caused both
local hospitals to be closed and the relocation of patients. She expressed the view that staff
should not be penalised for something they are exposed to in the course of their work, nor
should they miss out on pay because they are compliant with a policy to isolate until testing is
carried out.
Jack Strudwicke
[74] Jack Strudwicke is a qualified disability support worker employed part-time by Baptist
Care SA in Adelaide, and is a member of the ASU. His role requires him to support clients
who live independently. He provides “24/7” care to three main clients, who live in their own
private properties, and his duties include providing personal care and domestic assistance,
cooking and cleaning for clients, taking them shopping and assisting them with medication
and personal hygiene. Outside of work, both he and his fiancée provide essential care for
elderly family members.
[75] Mr Strudwicke gave evidence that while he had been supporting two of the clients,
one of them had woken up with a fever, was breathless and had a dry cough. This client was
taken for testing, and it was recommended that Mr Strudwicke also receive testing and then
return home to self-isolate until the results were received. He was told that there was no plan
organised by the employer for a hotel in which to self-isolate away from his family, and he
initially had to organise this himself; however he was ultimately allowed to undertake a
sleepover shift at the clients’ residence. He subsequently self-isolated at home, while his
family moved elsewhere. Both he and the client subsequently tested negative but he still had
to self-isolate until he was made aware of his client’s test result. His employer informed him
that he would not be allowed to access sick leave if he self-isolated but tested negative and, if
he tested positive, he could claim workers’ compensation. Mr Strudwicke expressed his
concern said that he did not receive any pay for the 14 days of self-isolation.
Letitia Bryant
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[76] Letitia Bryant works as a full-time trainee pharmacy assistant for Terry White Chemist
in Armidale, and is a member of the SDA. She is employed under the Pharmacy Industry
Award 2020. She gave evidence that there had been some COVID-19 cases in Armidale, that
some customers were not practising social distancing, and that often she had to assist
customers who are feeling unwell. Her evidence was that if she needed to isolate or felt
COVID-19 symptoms, she would feel pressured to continue working unless she tested
positive to the virus. She said that if she had to go unpaid for two weeks because she was self-
isolating, she would be unable to pay her rent, bills and groceries, which would significantly
affect her household, as her two housemates are currently out of work.
Tina Lamprey
[77] Tina Lamprey is employed part-time (26 hours per week) as a catering assistant at the
North West Private Hospital in Burnie, Tasmania, which is covered by an enterprise
agreement. She is a member of the HSU. Her work involves attending each patient’s room
delivering meals, which involves some contact with patients. Ms Lamprey gave evidence that
she had recently taken 12 months off work due to a back operation, and had used up all her
sick leave and long service leave. She stated she was back at work for five weeks when an
outbreak of COVID-19 occurred at the two hospitals in Burnie. These were shut down by the
Tasmanian Government in order to control the outbreak. She stated she had a slight sore
throat and was told to self-isolate, and all other staff had to self-isolate in any event. She was
tested, and the results came back negative. Her employer advised that all staff would be paid
while they were being asked to self-isolate and consequently had continued to receive her
regular rate of payment.
Tiresi Peterson
[78] Tiresi Peterson is employed as a family therapist for the Goodna Residential
Therapeutic Service Program, and is part of the Care Team providing specialist support to
young persons living at residential homes who come from trauma-based backgrounds and are
considered vulnerable. She is a member of the ASU. She gave evidence that her work gave
rise to a risk of being infected and potentially passing this to her family. She said that her
husband was recovering from bowel cancer and that she was anaemic and required frequent
blood transfusions. Her evidence was that she was concerned that if she had to self-isolate,
she would not be able to meet her mortgage, medical and other expenses and that she was
further under financial pressure because her adult children had lost their jobs due to the
pandemic.
Rachel Humphreys
[79] Ms Humphreys is a youth worker, and conducts outreach in client’s homes,
psychiatric units or secure welfare facilities. She is a member of the ASU. Her normal role is
to manage a caseload of eight young people, to whom she provides drug and alcohol support.
Since 19 March she has been working from home or the office. She gave evidence that while
she is looking forward to returning to face-to-face support with her clients, many of her
clients engage in high-risk behaviours and this puts herself at risk. Her concern is that she
would not have sufficient sick leave entitlements if she would become ill.
Trudy Hean
[2020] FWCFB 3561
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[80] Trudy Hean is employed as a homecare worker by Prestige In-home Care, and is a
member of the HSU. She is covered by an enterprise agreement, but her pay rates are based
on those in the Social, Community, Home Care and Disability Services Industry Award 2010.
Her role requires her to work with clients who are elderly or have a disability in their homes,
which requires her to have close physical contact with her clients in order to undertake
personal care including the preparation of meals, cleaning, dressing, showering and toileting.
[81] Ms Hean gave evidence that on or about 8 March 2020, she became ill and was asked
by her employer about her symptoms. Given her symptoms sounded similar to coronavirus,
she was asked to quarantine and not come back to work for 14 days. During the 14 day period
she presented at Royal Melbourne Hospital for a COVID-19 test, but was not permitted to
have a test because she not meet the criterion of having recently returned from overseas, and
was told to self-isolate for 14 days. She stated that she exhibited a number of symptoms of
coronavirus and was ultimately tested, but the result was negative. Her employer provided her
with $1200 pay for the fortnight. Ms Hean stated that she would normally receive $900 to
$1800 a fortnight. She is a single parent with five children living with her and said it had
would have been a significant struggle surviving on only carer’s payments if she had not
received the payment from her employer.
Christopher Wannop
[82] Mr Wannop is a member of the HSU, is employed by two disability services
employers on a casual basis, working 40 hours per week between the two jobs based in East
Gippsland in Victoria. In both positions, he is covered by enterprise agreements. His role
requires him to work in group homes undertaking a range of duties, including sleepover shifts.
He gave evidence that his health is compromised, and he received medical advice that he
should stop working during the pandemic. He had accordingly ceased work and has been
receiving the JobKeeper payment. As a casual employee, he was concerned as to how he
would manage if he became ill as he was not in receipt of any leave entitlements.
Alan Stokes
[83] Alan Stokes is employed as an Ambulance Attendant with St John Ambulance
Australia under the Ambulance and Patient Transport Industry Award 2020. He gave
evidence that his role is to assess patients and determine what treatment they require and
make decisions as to how they are going to transport them to the hospital. He stated that when
attending to a patient, he can be in two positions: either in the seat right next to them and
looking at their face (and thus exposed to a virus if, for example, they sneeze) or sitting
behind them. He said that it is commonly understood that if a patient has an illness that is
infectious, the ambulance attendant will try to sit in a position where they can attend to the
patient but not be near them, but this is not always possible.
[84] Mr Stokes said that he had personally attended four cases where the patient was
suspected to have COVID-19. In each of these cases he wore a full PPE gown as a precaution.
He said that since the pandemic, his family has pressured him not to work during the crisis,
due to his age, however he has continued to work the same number of shifts. He stated that if
he was required to self-isolate, he would lose income and that would prove very difficult for
him financially. He stated that currently, if directed to self-isolate, he would have to use leave
without pay, as he is a casual employee. He stated that colleagues of his that are casual
[2020] FWCFB 3561
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employees have confided in him that they feel compelled to come to work even when they
should be self-isolating because of concern for losing money.
Danny Hill
[85] Danny Hill is the Secretary of the Victorian Ambulance Union Incorporated (VUA).
He stated that a majority of VAU members have their terms and conditions of employment
covered by an enterprise agreement, although there are a number of members whose
employment is governed by the Ambulance and Patient Transport Industry Award 2020.
Award-covered employees are exempt from the Commonwealth Government direction to all
Australian citizens to stay home. His evidence was that employees working in the industry are
exposed to a greater viral load than a normal person who is otherwise self-isolating. If
employees have to use their own entitlements on more than one occasion to self-isolate, they
are more likely to exhaust their leave entitlements.
Case of the Australian Chamber of Commerce (ACCI), Australian Business Industrial
(ABI) and the NSW Business Chamber (NSWBC)
[86] The ACCI, ABI and the NSWBC submitted that the applications should not be granted
for the following reasons:
the grant of the applications would apply a single entitlement to a wide array of
relevantly different workplaces, in that although the applications were made in
respect of a group of awards designated as “Health awards’, they covered distinct
industries and a variety of employee types with distinctive characteristics and
working conditions, PPE, client contact and exposure, the availability of paid and
unpaid leave, rates of pay, and the capacity of employers to provide the entitlements
sought;
the central premise of the applications has not been made out in that the pandemic
has not been as acutely felt in Australia as in other countries, there is no evidence
that “health workers” have been exposed to, contracted or required to self-isolate
because of COVID-19 to a greater degree than the general population, and the grant
of the applications is not necessary to protect the resilience of the health system;
the scope of the claimed provisions are broader than can be justified by the premise
of the unions’ case, in that there is no connection sought to be drawn between the
requirement for the leave and the performance of work, in that under the claim an
employee is entitled to payment regardless of how an isolation or infection arises;
the current safety net is not deficient and the applications are not necessary, in that
entitlements for employees under the Health awards including workers’
compensation, paid and unpaid personal/carer’s leave, annual leave and “Schedule
X” unpaid pandemic leave are sufficient in the context of satisfying the modern
awards objective; and
the grant of the application has the potential, particularly in certain contexts, to affect
the viability of business and the model of using casual employees in labour hire.
[2020] FWCFB 3561
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[87] The ACCI, ABI and the NSWBC adduced evidence from three witnesses, which is
summarised below.
Sue Cudmore
[88] Sue Cudmore is the General Manager – Operations for Health Solutions Group
Australia and has operational control of the Alliance Health Services Group and Recruitment
Solutions Group. She has worked in the community and disability sector for 17 years and 15
of those years in executive operational and managerial roles in nursing and disability service.
She said Health Solutions employs around 5,800 nurses, all as casuals, who are paid in
accordance with the Nurses Award 2010. Alliance also employs 450 staff in community and
disability services, primarily on a casual basis, under the Social, Community, Home Care and
Disability Services Industry Award 2010 and the Alliance Home Care Services Enterprise
Agreement.
[89] She outlined the protocols in place pre-COVID-19 to prevent the spread of infectious
diseases and specific COVID-19 protocols that had been adopted. She said that the new
COVID-19 procedures that were implemented follow similar protocols and risk assessments
for any other infectious disease that staff would encounter during the course of their work.
With COVID-19 a client may be so unwell that it is not appropriate that they remain under the
care of Alliance and at that point would need to be transferred to a hospital. She said that
Alliance had not had to deal with a client who was suspected of having COVID-19 or tested
positive for COVID-19. She said that, assuming a person does not require hospitalisation
because of the severity of their symptoms, Alliance’s existing infection control management
and PPE protocols would be able to suitably deal with the risk of infection, perhaps with the
addition of a P2 mask which contains a filter. These masks are slightly larger than a surgical
mask but wouldn’t impact upon an employee performing their duties.
[90] Ms Cudmore said that at the time of the statement, Alliance had:
3 employees return from overseas who had to self-quarantine for 14 days per
government guidelines;
3 employees were exposed to a person with known or suspected COVID-19 outside
of work but did not present symptoms. They self-quarantined for 14 days per
government guidelines and were not paid as they were casual employees; and
3 employees reported flu like symptoms, and were tested for COVID-19 and self-
quarantined until test results received. The tests took between 3 and 7 days to be
returned. The tests returned negative results and the employees returned to work. She
said that health workers now have a fast-tracked test turnaround of 12 to 24 hours.
[91] At the time that Ms Cudmore made her witness statement, Health Solutions had one
case of an unsuspected aged care resident testing as positive to COVID-19 which resulted in
screening and contact tracing through the Department of Health which identified 8 staff as
close contacts and requiring testing and self-isolation for 14 days. Of the 8 workers identified,
as at 5 June 2020, 6 had been tested and are negative to COVID-19, 1 was awaiting results
and 1 was waiting to be tested. None of Health Solutions’ staff have been confirmed to have
contracted COVID-19.
[2020] FWCFB 3561
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[92] Ms Cudmore said that if a paid pandemic leave entitlement was inserted into the
Health awards, there would be no avenue to claim this money back from the NDIS or the
client, so the cost would be borne by the business, and this could create significant strain on
the financial resources of the business. She said that both Alliance and Health Solutions are
already suffering economic difficulties because of the COVID-19 pandemic. Alliance has
suffered a downturn in staff and are just reporting activity levels that are returning to pre-
COVID-19 levels. Health Solutions continues to deliver significantly lower activity, however
recent changes enabling private hospitals to recommence operating theatre activity has shown
a small increase in demand. If Health Solutions’ employees covered by a modern award could
take paid pandemic leave, the organisation would need to renegotiate contracts to enable it to
claim money back from host employers as this was an unforeseen potential expense.
Shanene Van Heerden
[93] Shanene Van Heerden is employed as a Human Resources Business Partner at Aspire
Support Services Ltd, which is a not-for-profit community organisation that provides a range
of support services for people with disabilities and their families. She stated that Aspire has
updated its Infectious Diseases Policy in response to COVID-19 and has been proactive in
putting in place a range of measures to address the risks associated with COVID-19. She said
that Aspire operates a number of different programs, each in a distinctly different
environment, and the COVID-19 procedures that were put in place varied depending on the
program.
[94] Ms Van Heerden said that since the beginning of March, any staff who had returned
from overseas, or had been in contact with someone who was a suspected or confirmed case
of COVID-19 and had symptoms of COVID-19 were required to self-isolate for 14 days, as
per Government stipulations. Staff members are required to be tested and return a negative
test result before returning to work. Ms Van Heerden stated that if paid pandemic leave
entitlement was to be inserted into the modern awards, the employer would then bear the cost
and it would not be recoverable from the client, the NDIS or the State or Federal Health
Departments. She stated that Aspire is already struggling to remain profitable given the recent
changes to the NDIS Price Guide. If Aspire was required to pay a staff member to self-isolate
for 14 days, or potentially for an indefinite period of time while they were recovering from
COVID-19, it would have to review the current programs and either downsize or close certain
programs. As such, she said, the claim would increase the financial strain on the organisation
with those difficulties flowing through to the clients.
Ryan Kevelighan
[95] Ryan Kevelighan is a director of 1 Medical, a medical labour hire agency that supplies
doctors to public and private hospitals and medical clinics and practices across all states and
territories of Australia. He stated that the business currently engages 120 medical practitioners
actively engaging in regular locum work of whom 50% are direct employees and the
remainder contract through their own companies or are directly engaged by hospitals.
[96] Mr Kevelighan gave evidence that, since the recent development in respect of
COVID-19, there has been a considerable increase in training and protocols surrounding
COVID-19, although baseline protocols already included infectious diseases controls. He
stated that since the introduction of the pandemic into Australia several doctors engaged by
his business had been forced to quarantine as a result of crossing state boundaries. He said
[2020] FWCFB 3561
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that if the business became liable for paid leave as a result of one or more of its doctors
requiring to isolate or contracting COVID-19, it could not recoup these expenses from the
relevant client, and therefore the business could become a loss-making entity relatively
quickly. A locum doctor earns between $1000 to $3000 per day, often for six days a week,
and therefore the weekly cost to keep a doctor on paid pandemic leave would be $6000-
$18,000 per week. Therefore, he stated, the potential cost in the absence of any income to
mitigate it would be unfeasible to maintain for more than a very short period. If the unions’
claim was implemented they would be required to immediately review their model of
engaging doctors as PAYG casual employees, and might take immediate steps to remove
these doctors out of the current hospital placements or seek the conversion of these doctors to
direct engagement with the hospitals. He stated that locum doctors provide an essential
service to the health care system, and the impact on the labour hire model which is dependent
on the ability for true casual engagement would have to be reconsidered.
Aged and Community Services Australia (ACSA) and Leading Age Services Australia
(LASA)
[97] ACSA and LASA endorsed the submission of the ACCI, ABI and the NSWBC, and
made further submissions addressing the Aged Care Financial Performance Survey – Aged
Care Sector Report (For the six months ended 31 December 2019) (2019 Survey Report),
which it placed into evidence, and the other evidence relevant to their interests in the aged
care sector. In summary, they submitted:
the 2019 Survey Report is relevant to the Aged Care Award 2010 in respect of
residential aged care, the Nurses Award 2010 in respect of both residential aged care
and home care, the former Health Professionals and Support Services Award 2010 in
respect of residential aged care and home care and the Social, Community, Home
Care and Disability Services Industry Award 2010 in respect of home care;
the 2019 Survey Report dealt with the financial situation of the aged care sector in
the six months to 31 December 2019, before the pandemic began to affect economic
conditions in Australia;
in respect of Aged Care Homes, the 2019 Survey Report identified that the average
result was a loss of $6.43 per bed per day, and that 56% of all respondents were
operating at a loss;
on average, residential aged care and home care operators were running a loss of
$1,104,000;
this meant that aged care employers were in an extremely precarious financial
position and there was no capacity to pay for additional employment entitlements;
and
in relation to the 15 union witnesses who gave evidence relevant to the aged care
sector, none had contracted COVID-19, 7 of 15 were required to self-isolate in some
way, and the evidence of those 7 witnesses did not disclose any apparent necessity to
grant the applications or the existence of any “regulatory gap”.
[98] ACSA and LASA called two witnesses, whose evidence is summarised below.
[2020] FWCFB 3561
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Grant Corderoy
[99] Mr Corderoy is a Senior Partner with StewartBrown Chartered Accountants. He has
particular experience and involvement in the Aged Care Sector including professional
relationships with 190 aged care providers and consulting projects for the Department of
Health, with specific focus on financial sustainability at government, provider and consumer
levels as well as policy development including extensive stakeholder consultations.
[100] He established the StewartBrown Aged Care Financial Performance Survey in 1995
which is subscription based and designed for each participant organisation to compare and
benchmark their operating performance at residential aged care homes and home care
programs through a number of financial and non-financial measures. The response rate to the
survey is above 43% of all residential aged care homes nationally and above 40% of all home
care package programs. It is published quarterly. The 2019 Survey Report was the most recent
version of this survey at the time of Mr Corderoy’s statement. Participants to the 2019 Survey
Report represent approximately 44.5% of non-government aged care homes within Australia.
The most recent survey report for the nine months ended 31 March 2020 was placed into
evidence.
Viv Allanson
[101] Viv Allanson is the CEO of Maroba Caring Communities, an aged care residential
facility. She is also a Registered Nurse with experience in Midwifery, Renal /Transplantation
and Dialysis. She has worked in the aged care sector for 28 years. She gave evidence that
Maroba has detailed infection control procedures and always follows the guidance of medical
professionals on the required period an employee must be absent from work following
contracting or exposure to an infectious disease. She said all of Maroba’s residents are in one
of the high risk categories if they were to be infected with COVID-19, being either over 70,
over 65 with chronic medical conditions, having compromised immune systems, or being
Aboriginal or Torres Strait Islander persons over 50 years old. She said Maroba was proactive
in introducing protocols to address COVID-19 risks and introduced the “Maroba COVID-19
Pandemic Risk Management Plan”.
[102] She said that, at the time she made her witness statement, approximately 40 employees
have been unable to attend work since the onset of COVID-19 due to Commonwealth
Department of Health guidelines:
Prior to 25 May 2020, 35 were unable to attend work because they displayed
symptoms relevant to COVID-19. From 26 May onwards, 8 employees were unable
to attend work because they displayed symptoms relevant to COVID-19.
11 employees were required to take unpaid leave during their absence, and would
have been required to absent themselves regardless of COVID-19 as they were
unwell.
1 employee was absent because they were required to isolate after undertaking travel
in their personal life and was required to be absent for 14 days. They were able to
attend work after the quarantine period, and were required to take unpaid leave
during their absence.
[2020] FWCFB 3561
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1 employee was unable to attend work because they were required as a result of
government orders to isolate after coming into close contact with a suspected
COVID-19 case outside of their employment. They were required to be absent 7
days and were able to attend work once they had a negative COVID-19 result and 7
days absence. The employee took paid leave during this absence.
No employees were required to isolate or to take leave as a result of a close contact
with a suspected COVID-19 case made during their employment.
[103] She said Maroba is funded by Commonwealth subsidies and co-contributions from
residents. The Aged Care Funding Instrument (ACFI) tool establishes the assessed care needs
and funding is allocated accordingly. To determine funding, residents must undergo a range of
complex medical assessments to understand their needs and funding is allocated accordingly.
Residents only contribute an average of $51 a day to their care and remaining funding is
allocated as per the ACFI, which ranges from a top up of $37.68 per day up to around
$219.62 per day depending on complexity of the needs to the resident. Between these funding
sources Maroba must find enough money for all overheads and outgoings, including staff
wages. Although earnings fluctuate, staff cannot be shed as a certain level of staff is required
to ensure standards of care are met, and most staff are permanent employees. Since COVID-
19, Maroba’s occupancy has dropped by 12 beds in order to create an isolation ward for
residents who are required to self-isolate.
[104] Ms Allanson said that Maroba has an enterprise agreement and thus any award
variations will not apply. She said that in the event that the claim was granted and it did apply
to Maroba, having to pay any entitlement outside an employee's normal leave allocation
which they had not been able to budget for, and adequately put money aside for, would place
a further unfunded burden on rosters and direct care, and such entitlement would be extremely
onerous on Maroba under current conditions.
Pharmacy Guild of Australia (PGA)
[105] The PGA submitted that, in light of the measures which have been taken to control the
COVID-19 pandemic, there is no greater risk or chance that a person working in a community
pharmacy would come into close contact with a person who is carrying COVID-19 than in
any other retail environment, or in schools, clubs, hotels, food courts, cafes, restaurants, sports
events, gyms, swimming pools, beauticians, hair dressers, or by visiting family or friends,
undertaking interstate or intra-state travel, attending weddings or funerals or attending a
workplace. Many community pharmacies are located in shopping strips or malls, and
customers in such pharmacies are likely to also visit nearby retail premises. The PGA further
submitted that the risk to employees in community pharmacies is in fact lower than other
industries because of hygiene requirements and the brevity of contact with particular
customers. The PGA also contended that, to the extent the application would require an
employee to access the proposed paid pandemic leave before accessing the entitlement under
the FW Act to personal leave, it is not permissible by reason of s 55(4) of the FW Act, and in
any event the proposed entitlements are not necessary to achieve the modern awards
objective.
Private Hospital Industry Employer Associations
[2020] FWCFB 3561
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[106] The Private Hospital Industry Employer Associations11 made submissions in respect of
their interest in the Health Professionals and Support Services Award 2020 and the Nurses
Award 2010. The Associations submitted that while, in an uncontrolled environment with
poor pandemic preparation measures in place and insufficient PPE, health care workers who
are required personally to attend to actual or suspected COVID-19 patients, would be at a
significantly heightened risk of exposure to the virus, that was not the situation in Australia.
Government interventions in response to COVID-19 have been informed by expert medical
advice and recommendations arising from the Australian Health Protection Principal
Committee, and have been extremely successful to date in minimising the spread of COVID-
19 in Australia. The measures taken included limiting visitors to hospitals, strict social
distancing in hospitals, establishment of separate clinics or zones for suspected COVID-19
patients with higher precautions, enhanced screening of patients prior to admission, reduction
in face-to-face consultations and the use of telehealth, provision of PPE and training
resources, and the temporary suspension and then restriction on elective surgery.
[107] The Associations submitted the award provisions proposed by the unions made no
distinction, in respect of periods of mandatory self-isolation, between workplace contact with
suspected or confirmed COVID-19 cases and contact outside of the workplace, meaning that
there is no requirement for employee accountability with respect to their non-work activities.
The steps taken inside hospitals will minimise any contact with COVID-19 patients, and it
would be unfair and inequitable to introduce an entitlement for paid leave which extended to
circumstances arising from non-work activities.
Australian Industry Group (Ai Group)
[108] The Ai Group submitted that:
the award provisions proposed by the unions would entitle employees to leave in a
broad range of circumstances, many of which have no connection to the workplace,
and would also entitle casual employees to leave for periods in which they might not
have worked;
the assertion of an elevated risk of contracting COVID-19 had not been made out,
and no distinctions had been made between categories of employees who had contact
with COVID-19 patients and those who had no contact at all;
there is no evidence of any non-compliance by employers with measures necessary
to minimise the risk to employees at the workplace, and the general rate of infection
in Australia is low;
many employers to whom the proposed provisions would apply have experienced
significant hardship as a result of COVID-19 and have needed to devote
considerable resources into dealing with the situation;
11 Australian Private Hospitals Association, Australian Private Hospitals Association – New South Wales, Australian Private
Hospitals Association – South Australia, Australian Private Hospitals Association – Tasmania, Australian Private
Hospitals Association – Victoria, Australian Private Hospitals Association – Western Australia, Day Hospitals Australia,
Private Hospitals Association of Queensland
[2020] FWCFB 3561
35
the proposed provisions would increase business costs and the regulatory burden;
and
the proposed provisions are not necessary to achieve the modern awards objective.
Australian Federation of Employers and Industries (AFEI)
[109] The AFEI’s submissions advanced propositions similar to those of the other employer
groups. Its submissions emphasised the need to consider the application in light of the current
circumstances of the pandemic, not those applying when the applications were filed. It
submitted that since the filing of the applications, the following fundamental changes had
occurred:
a demonstrated flattening of the COVID-19 curve in Australia;
improved contact tracing of COVID-19;
improved COVID-19 testing capabilities and increased access to COVID-19 testing;
relaxation of public and commercial restrictions under Public Health Orders;
reduction in identified cases of COVID-19 local transmission cases
clearer guidelines on infection control protocols; and
variation to workers compensation laws.
[110] The AFEI submitted that the unions’ evidence did not demonstrate that employees
covered by the Health awards had contracted COVID-19 or had been required to self-isolate
at a higher rate than the general Australian population. To the contrary, the available evidence
suggested no COVID-19 infections amongst employees, and that self-isolation by employees
has been required due to circumstances outside of work such as overseas travel or the display
of symptoms where the source of transmission is unknown but unlikely to be work-related
because of the infection control procedures which have been taken. In substance, the AFEI
submitted, the proposed provisions constituted a scheme to indemnify employees against
economic loss rather than a term about leave that is permissible under s 139(h) of the FW Act.
Current status of the COVID-19 pandemic
[111] It is obviously necessary that the unions’ application be considered in light of the
current situation of the COVID-19 pandemic in Australia. As at 8 July 2020, the following
information was available on the website of the Department of Health of the Australian
Government:12
since 22 January 2020, there have 8,755 cases, of which there have been 106 deaths
and 7,455 recoveries;
12 https://www.health.gov.au/news/health-alerts/novel-coronavirus-2019-ncov-health-alert/coronavirus-covid-19-current-
situation-and-case-numbers
[2020] FWCFB 3561
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56.7% of cases were acquired overseas;
a total of 2,801,107 tests have been carried out, and there have been 41,942 tests in
the last 24 hours;
there have been 199 new cases identified in the last 24 hours, of which 191 have
been in Victoria, 7 in New South Wales and 1 in Queensland;
there have been two deaths in Victoria in the past week; and
there are currently 39 cases currently admitted to hospital, of which 10 are in
intensive care.
[112] The following graph shows the progress of the pandemic in Australia in terms of the
number of cases on a daily and cumulative basis. It shows that the pandemic peaked in mid-
March to early April, then diminished to a low level before starting to rise again in late June
due to a rising number of new cases in Victoria.
[113] As at the time of writing of this decision (8 July 2020), there have been official and
media reports in relation to the situation in Victoria that indicate that:
10 healthcare workers have been diagnosed in the past week;
3 new cases involving staff at separate hospitals were confirmed on 6 July 2020;
an outbreak amongst staff in the emergency department at the Northern Hospital has
increased by 4 cases to 9 in the past few days;
Daily Reported Cases - Cumulative Cases 500 10,000 Cumulative Cases Daily Reported Cases 0 1-02 1-03 1-04 1-05 1-06 Date
[2020] FWCFB 3561
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5 new cases have been reported that are linked to aged care facilities; and
there are 35 COVID-19 patients in hospital, with 9 in intensive care.
[114] There are statistics available that are specific to the situation in aged care. Until 7 July
2020, there have been 71 cases in Australian Government-subsidised residential aged care
facilities, of which there have been 31 deaths and 40 recoveries. There are no active cases. Up
to the same date in Australian Government subsidised home care, there have been 33 cases, of
which there have been 4 deaths and 28 recoveries, with 1 case remaining active.
[115] The number of cases and deaths in Australia has been low compared to many other
comparable nations. The World Health Organisation daily situation report for 7 July 2020
shows the following:
Country Total cases New cases Total deaths New deaths
Australia 8,586 137 106 2
United States 2,877,238 43,686 129,643 235
Canada 105,536 219 8,684 10
United Kingdom 285,772 352 44,236 16
France 159,568 834 29,831 23
Germany 196,944 390 9,024 8
Italy 241,819 208 34,869 8
Sweden 73,061 1,642 5,433 13
Japan 19,981 206 978 1
South Korea 13,181 44 285 1
Singapore 44,983 183 26 0
New Zealand 1,186 2 22 0
Practical scope and effect of the claim
[116] The consideration of the unions’ applications also requires an assessment of the areas
in which the claim, if granted, would have a direct operative affect. That requires the
identification of those areas of employment under the Health awards where the rate of award
reliance is the highest. It must be noted, at the outset, that much of the expert evidence has
focused on “frontline” health workers and the circumstances they face in relation to the
COVID-19 pandemic, and the large majority of such employees will not be affected by the
disposition of the unions’ application because in all of the States except Victoria, employees
in State public health authorities including doctors, nurses, ambulance paramedics, hospital
pharmacists and hospital ancillary staff will be covered by State industrial instruments rather
than the Health awards. In Victoria and the Territories, enterprise agreements generally apply
to employees in these categories.
[117] The April statement contained the following information about agreement in the
sectors covered by the Health awards:
“As to the coverage and application of each of the awards mentioned in [2] above, the
list below breaks down the agreements in the health sector that have a nominal expiry
dates from 1 June 2019 into the following industry sub-groups:
[2020] FWCFB 3561
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Industry Current agreements
Aged care industry 474
Ambulance and patient transport 11
Health and welfare services 655
Indigenous organisations and services 4
Social, community, home care and disability services 201
Grand Total 1345
The Health and welfare agreements cover nurses, allied health professionals, support
and administrative staff. Consistent with the national system jurisdiction, there are
agreements for public hospitals in Victoria and the territories but not elsewhere. Most
agreements are for private hospitals (including nurses), large private sector employers
such as Ramsey and pathology/radiology services. There appear to be some local
government services (primarily Victoria and Tasmania) and not for profits such as the
Red Cross.
The SCHADS agreements are primarily the larger not for profits, local government
and State government (Victoria) in the disability and social services sectors. There do
not appear to be many agreements for smaller private sector providers especially in the
home care sector who are contracted to provide NDIS support.
Aged care agreements cover nurses, support and administrative staff. While there are a
large number of agreements in this sector, these are predominantly for the larger
providers such as BUPA and religious organisations; there do not appear to be many
agreements for smaller private sector providers.”
[118] The Commission also published on 9 April 2020 an information note about the
numbers of employees under the Health awards covered by enterprise agreements which
included the following data:
Modern award Number of
employees
(’000)
Not covered
by
enterprise
agreement
(’000)
Covered by
enterprise
agreement
(’000)
Number of
businesses by size
Small Medium Large
Aboriginal Community Controlled Health Services
Award 2010 n/a n/a n/a n/a n/a n/a
Aged Care Award 2010 262.8 126.0 136.7 415 498 142
Ambulance and Patient Transport Industry
Award 2010 27.9 13.4 14.5 11 4 3
Health Professionals and Support Services
Award 2010 597.0 286.3 310.7 24 864 918 85
Medical Practitioners Award 2010 740.7 372.6 368.1 28 918 828 60
Nurses Award 2010 754.7 361.9 392.7 7984 277 51
Pharmacy Industry Award 2010 217.4 129.8 87.6 4473 1,024 14
Social, Community, Home Care and Disability
Services Industry Award 2010
617.3 296.0 321.3 1760 402 51
Supported Employment Services Award 2010* n/a n/a n/a n/a n/a n/a
Total 3217.7 1586.0 1631.7 68425 3951 406
[2020] FWCFB 3561
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[119] The ACTU provided further information about award coverage and the extent of
collective bargaining in the sectors covered by the Health awards which was not the subject of
any significant contest. This information may be summarised as follows:
2014 ABS Employee Earnings and Hours (EEH) Survey data showed that in the
“Other store-based retailing sub-division” of the Retail Industry division, which
includes “Pharmaceutical, Cosmetic and Toiletry Goods Retailing”, 35.4% of
employees were “award only” – that is, an award was the sole mechanism for setting
pay and conditions;
the above sub-division aligned strongly with the coverage of the Pharmacy Industry
Award 2020;
the EEH survey also showed that in the Health Care and Social Assistance Industry
division, 22.3% of employees were “award only”, but the figure was 20.4% in the
“Hospitals” sub-division, 17.9% in the “Medical & other health care services” sub-
division, 4.7% in the “Residential Care Services” sub-division and 50.9% in the
“Social Assistance Services” sub-division;
the “Hospitals” sub-division suggested an overlap with the coverage of the Health
Professionals and Support Services Award 2020, the Nurses Award 2010 and the
Medical Practitioners Award 2020, relevant classes and groups in the “Medical &
other health care services” sub-division aligned with the Health Professionals and
Support Services Award 2020, the Nurses Award 2010, the Medical Practitioners
Award 2020, the Aboriginal Community Controlled Health Services Award 2020 or
the Ambulance and Patient Transport Industry Award 2020, and the “Residential
Care Services” would involve employees covered by the Aged Care Award 2010, the
Social, Community, Home Care and Disability Services Industry Award 2010 and
the Nurses Award 2010; and
the number of “award only” employees was likely an underestimate of those who
enjoyed award-derived conditions, since the Commission’s 2014 Australian
Workplace Relations Study identified that while only 24.6% of enterprises used
awards to set pay exactly at the award rate, 51.2% used awards as a guide for doing
so.
[120] The ACTU also offered the following general picture of award reliance based on the
experience of its affiliates:
Aboriginal Community Controlled Health Services Award
Many award dependent workers in Tasmania, New South Wales, Queensland,
Victoria and the Northern Territory. Some greater enterprise agreement coverage in
South Australia.
Aged Care Award
There is high degree of enterprise agreement coverage of residential nursing homes
in New South Wales, Victoria and Tasmania. However, there is a greater degree of
award reliance in Queensland, South Australia and the Northern Territory. In
Western Australia the coverage of enterprise agreements tends not extend to the full
complement of staff employed in the aged care facility.
[2020] FWCFB 3561
40
Ambulance and Patient Transport Award
The private patient transport industry is highly award dependent, as distinct from the
public sector. The private sector is growing.
Around a third of union members in the sector are not covered by an enterprise
agreement.
Health Professionals and Support Services Award
Award reliance is concentrated in areas where private providers operate, such as
diagnostic services and in private medical clinics, particularly outside of Victoria.
Medical Practitioners Award
The award applies to very small number of doctors, estimated to be less than 1,000
and probably closer to 500.
Those doctors are paid above the award rates, but not via an enterprise agreement.
Slightly less than half of these doctors are thought to work in Aboriginal Medical
Services and the Royal Flying Doctor Service in QLD and in private hospitals in
New South Wales, Victoria and Western Australia. The remainder work at various
Australian Defence Force facilities.
Nurses Award
Award reliant workers concentrated in private medical clinics, specialists’ rooms,
diagnostic services, home based care and labour hire (e.g. “agency nurses”).
There would be a small number of employees to whom the award applied who are
employed in private hospitals.
No reliance on the federal Nurses Award in the public sector, save for labour hire.
Some small areas of award reliance outside of the health industry, for example where
large manufacturing operations employ a nurse for first aid purposes.
In the aged care setting, registered nurses and enrolled nurses are generally covered
by enterprise agreements throughout Australia. However, enterprise agreement
coverage of the lower paid classifications in the Nurses Award is more variable, with
such employees in South Australia in particular tending to not be covered by
enterprise agreements.
Pharmacy Award
Predominantly award reliant, with little interest among employers and employer
associations to bargain for an enterprise agreement.
Only four known enterprise agreements in the industry which cover a union.
Social, Community, Home Care and Disability Services Industry Award
Significant levels of award reliance in disability and home care, which is increasing;
Estimate over 70% of disability support stream in Tasmania is Award reliant;
Some businesses that operated in both the home care sector and residential care
sector make enterprise agreements covering only the residential care operations in
their business.
Supported Employment Services Award
Highly award reliant throughout Australia. Exclusively Award reliant in Tasmania.
[2020] FWCFB 3561
41
[121] The broad conclusions we draw from the above information, as well as the entirety of
the evidence and the main loci of employer opposition to the application, is that the grant of
the unions’ applications would have the following practical effect:
very little effect in the public hospital sector except in relation to locum doctors
covered by the Medical Practitioners Award 2020 and labour hire nurses covered by
the Nurses Award 2010;
some effect in the private hospital sector and medical clinics and practices for
employees covered by the Medical Practitioners Award 2020, the Nurses Award
2010 and the Health Professionals and Support Services Award 2020;
significant effect in the residential aged care sector covered by the Aged Care Award
2010, with coverage of the Nurses Award 2010 in this area also affected;
significant effect in the social and community services sector, the home care sector
and crisis assistance and supported housing sectors covered by the Social,
Community, Home Care and Disability Services Industry Award 2010;
significant effect in the pharmacy sector covered by the Pharmacy Industry Award
2020;
little effect on ambulance paramedics except on patient transport in the private
ambulance sector covered by the Ambulance and Patient Transport Industry Award
2020;
significant effect in the areas of coverage covered by the Aboriginal Community
Controlled Health Services Award 2020 and the Supported Employment Services
Award 2020.
Consideration
[122] We make the following findings based on the evidence and other material before us.
First, we are satisfied based on the evidence, particularly that of Professor MacIntyre and Mr
McLean that, at a high level of generality, workers in the health and social care sectors are at
a higher risk of infection by COVID-19 (and other infectious diseases) than workers in the
rest of the economy and this in turn may lead to more frequent and widespread requirements
for them to self-isolate because they have been exposed to actual or suspected COVID-19
patients or have displayed COVID-19 symptoms. However the following important caveats
must be attached to this finding:
(1) As earlier stated, much of the expert evidence was directed at the position of
“frontline” health care workers – that is, workers in public hospitals and
emergency-response paramedics actually treating or providing services to
confirmed or suspected COVID-19 patients. These workers are either generally
not covered by modern awards at all because they are not in the federal system,
or modern awards do not apply to them because they are covered by enterprise
agreements. We accept that an elevated risk may exist in private hospitals
(noting that a private hospital in Tasmania was shut down in April 2020
because of a COVID-19 cluster), but the private hospital sector is largely
[2020] FWCFB 3561
42
covered by enterprise agreements. Although there may be an elevated level of
risk at private medical clinics and practices, this is unlikely to be to the same
extent as for hospital workers.
(2) The degree of elevated risk varies greatly elsewhere in employment covered by
the Health awards. For some workers covered by these awards, the risk has
been removed because they can work at home or remotely. Outside of the
health system proper, the biggest area of concern is in the areas of aged care
and care for the disabled.
(3) Australia has to this point in time been highly successful in controlling the
spread of COVID-19, to the extent that there remain only a small number of
COVID-19 cases, and very few of these are being treated in the hospital
system. There has been a serious recent upturn in new cases in Victoria,
although the available information suggests that this has been the result of
community transmission and not from infection in institutional settings.
Accordingly the elevated risk of infection of health and care workers is not
currently being manifested in actual or suspected infections of any significant
number of such workers.
(4) We are not satisfied that there is an elevated risk of infection for workers
covered by the Pharmacy Industry Award 2020. The evidence before us tends
to suggest that both pharmacists and pharmacy retail assistants have no greater
level of risk than retail workers in general. Although pharmacies are inherently
likely to attract a proportion of customers who have symptoms of illness and
are seeking medication, such customers are equally likely to enter other retail
premises. There is no information before us to indicate that pharmacies have
manifested themselves as sources of infection.
(5) The basis for the inclusion of the Supported Employment Services Award 2020
in the list of Health awards is obscure, since employees under this award
perform activities of a different character. The evidence does not sustain the
conclusion that employees at ADEs covered by this award have an elevated
risk of COVID-19 infection, and as we understand the position is that most
ADEs have drastically limited their activities during this pandemic.
[123] Second, we are satisfied that there is a very real risk that employees who have no paid
leave entitlements to access (whether because they cannot access their personal leave, or have
exhausted their leave entitlements, or are engaged on a casual basis) in the event they are
required to self-isolate, may not report any COVID-19-like symptoms or contact with
someone suspected of having COVID-19 out of concern that they will suffer significant
financial detriment. This presents a significant danger to infection control at workplaces
covered by the Health awards – particularly in the aged care sector, where the statistics re
have referred to earlier demonstrate a very high fatality rate amongst the COVID-19 cases
which have occurred.
[124] Third, employers covered by the Health awards generally appear by this time to have
successfully adopted work procedures and provided PPE such as to minimise the risk of
infection in institutional settings. We observe that much of the evidence given by the ACTU
employee witnesses dealt with the early phase of the pandemic in the March-April 2020
[2020] FWCFB 3561
43
period, when employers and the community generally were struggling in a short space of time
to prepare an adequate response to the pandemic. Thus much of the witness evidence reflected
the confusion and initial inadequacy of PPE and infection-control procedures in this period.
That evidence does not fairly represent the current position. We wish to emphasise that in
making this observation, we do not intend any criticism of the evidentiary case advanced by
the ACTU and the unions, which was comprehensive and assembled with impressive rapidity,
but rather to underline that events during the pandemic have moved rapidly.
[125] Fourth, there appears to have been a widespread recognition amongst employers in the
health and care sectors that where employees have been required to self-isolate in order to
ensure that the workplace is protected from infection, it may be necessary to make special
arrangements for the payment of such employees where they have no or insufficient leave
entitlements to access. This may arise both from a consideration of fairness to employees and
the necessity to protect the workplace from infection by ensuring that workers know they are
financially protected if they report COVID-19 symptoms or exposure to a person suspected of
having COVID-19 and are to self-isolate as a result. The information provided by the ACTU
which is set out in the Schedule to this decision, demonstrates that the provision of various
forms of paid pandemic leave has been adopted on a widespread basis in the State and
Territory public sectors, including the health sector. The evidence of the ACTU/union
witnesses demonstrates that, when forced to self-isolate, most were eventually paid by their
employers. Ms Allanson, an employer witness in the aged care sector, gave evidence going to
the intrinsic merit of the proposition that employees in the health and care sectors should, in
the interests of fairness, be paid if they are required to self-isolate as follows:
“Now, my disappointment is that the government didn't step up to the plate and say, like
in the public health system, we know staff who have got daughters and sons in the
health system that have been granted automatic 21 days for pandemic leave. Now
that's what this government should have done for aged care, because they know we are
financially on our knees. I'm going to have a $1.3 million loss come the end of this
month. I'm going into the next financial year with a budgeted $300 000 to $400 000
loss. I have no more money. It means I will be taking away from some other care
aspect.
….
Yet I know we run a great service here for our residents, our families feel very - in a
place where they trust us. Our staff feel that they trust us, that they feel we've
protected them and I think the government should be stepping up and saying, "Here
we are, we've come to the party and we will allocate so much money for every aged
care worker in this country". They have access to the Tax Office, they know who's an
aged care worker and they should be saying, "Right, if they need leave this is what
we're going to allocate", because they'll think that is - I think where you're going with
this is necessary, but I have 60 per cent of the sector, and I don't know about the
others, I don't think they're doing that crash hot either. They're less and less, in terms
of their robustness of their financial outcomes, there is no money, yet, morally, these
workers, these women, the majority of female workforce who constantly put
themselves second should be put first for once and this government should put its hand
up and say, "We will pay for that leave", because we're - we're in the middle, there is
more to come and they should be given peace of mind to know that they can still look
[2020] FWCFB 3561
44
after their families and look after the residents and do the very best for them. Just
saying.”13
[126] Fifth, as Ms Allanson’s evidence quoted above indicates, the establishment of a paid
pandemic leave provision would potentially cause significant financial difficulty for some
employers, particularly those in the subsidised aged care sector and the NDIS-funded
disability sector, because such employers will have little or no capacity to recover the cost.
[127] Having regard to these findings, we turn to the merits of the applications. We do not
consider that there is a necessity to establish a paid pandemic leave entitlement for any
employee who has actually contracted COVID-19 as a result of infection in the workplace and
has to take time off work, since the employee (even if engaged on a casual basis) will be
entitled to payment under the applicable workers’ compensation scheme in that circumstance.
Workers’ compensation entitlements are a long-established feature of the safety net for
employees in Australia, and there is no evidence before us that the various statutory workers’
compensation schemes have dealt inadequately with any employee who has contracted
COVID-19. In this connection, we note that in some jurisdictions there have been adjustments
to workers compensation schemes in response to the pandemic; for example, the Workers’
Compensation Act 1987 (NSW) has been amended so that for workers in certain areas of
employment, including the health care sector and in disability and aged care facilities, it will
be presumed that a worker who has tested positive for COVID-19 has contracted it in the
workplace unless proven otherwise. We likewise do not consider that paid pandemic leave is
justified for health and care workers who test positive for COVID-19 as a result of
community transmission (that is, it is not contracted at or in connection with work) since, in
that case, the position is no different from that of a worker in any other sector of employment.
[128] However, the position is distinguishable with respect to the situation where a health or
care worker has to spend time off work because they are self-isolating as a result of potential
contact with a suspected COVID-19 carrier in the course of employment or the display of
potential COVID-19 symptoms. In neither case would workers’ compensation entitlements
apply if the worker ultimately tested negative for the virus. As was pointed out in the April
decision, employees in that position might not be able to access personal carer’s leave (even if
they have an entitlement to it) without the agreement of their employer because they are not
unfit to work because of personal illness. This is the “regulatory gap” referred to in the April
decision. On the basis of the our earlier findings, we consider that this regulatory gap has
greater significance for employees covered by the Health awards (excluding the Pharmacy
Industry Award 2020 and the Supported Employment Services Award 2020 for the reasons
earlier stated) because of the greater risk and likelihood that that they will be required to self-
isolate and because of the critical importance of ensuring that employees self-isolate where
necessary rather than not disclosing their position and continuing to work out of financial
need. In that respect, we note that some categories of workers who are paid in accordance
with the Aged Care Award 2010 and the Social, Community, Home Care and Disability
Services Industry Award 2010 meet the definition of being low paid.
[129] On a fairly fine balance, we are not presently satisfied that the grant of the unions’
applications is necessary to achieve the modern awards objective. In respect of the matters
required to be taken into account under s 134(1), the most critical considerations are those in
13 Transcript 26 June 2020, PNs 1567-1569
[2020] FWCFB 3561
45
paragraphs (a) and (f). In respect of paragraph (a), we consider that the needs of the low paid
have particular significance in respect of the necessity for employees under the Health awards
to report circumstances which may require self-isolation rather than avoiding doing this for
reasons of financial need. In relation to paragraph (f), we have placed significant weight upon
the potential non-recoverable costs to employers in the aged care and disability sectors of a
new paid pandemic leave provision. The other matters in s 134(1) appear to us to be of limited
relevance. The overriding factor we have taken into account is that, in the current
circumstances, the degree of success in controlling the COVID-19 pandemic means that the
elevated potential risk to health and care workers of actual or suspected exposure to infection
has not manifested itself in actuality.
[130] However, we will not dismiss the applications at this time. As Professor MacIntyre
emphasised, the position in respect of the COVID-19 pandemic has the potential to radically
change in a matter of weeks. The significant and rapid reversal of positive trends in countries
such as the United States and Israel is demonstrative of this. Events which are currently
occurring in Victoria are disturbing and, although the recent increase in cases has been the
result of incidences of community transmission, the most recent information to which we
have earlier referred suggests that there may have been some spread of infection into the
hospital system. We think the appropriate course is to stand the matter over on the basis that it
may be relisted on request as short notice if there continues to be a significant deterioration of
the position. We will ourselves monitor events and we may relist the matter of our own
initiative if we consider it necessary. In the event that the matter is relisted, the parties may
rely on the findings we have already made unless these have been overtaken by further events.
[131] We indicate that we may be prepared if necessary to grant the application on the
following bases:
there is evidence that the elevated risk to which we have earlier referred is
manifesting itself amongst health and care workers in a discernible way;
the leave entitlement is for workers who are required to self-isolate because they
display COVID-19 symptoms or have come into contact with a person suspected of
having contracted COVID-19;
the leave entitlement is limited to up to two weeks’ paid leave on each occasion of
self-isolation;
the entitlement is targeted at workers who are not working at home or working
remotely and who are covered by the Aboriginal Community Controlled Health
Services Award 2020, the Aged Care Award 2010, the Ambulance and Patience
Transport Industry Award 2020, the Health Professionals and Support Services
Award 2020, the Medical Practitioners Award 2020, the Nurses Award 2010 or the
Social, Community, Home Care and Disability Services Industry Award 2010; and
we would only apply the leave entitlement to casual employees if there was a
demonstrated threat to the resilience of the health care system and the systems for
the care of the aged and the disabled.
[132] For the reasons stated, the matter is adjourned.
[2020] FWCFB 3561
46
VICE PRESIDENT
Appearances:
Mr T Clarke on behalf of the Australian Council of Trade Unions.
Ms K Biddlestone on behalf of the Shop, Distributive and Allied Employees Association.
Ms M De Vecchis on behalf of the Australian Salaried Medical Officers Federation.
Mr M Robson on behalf of the Australian Services Union.
Mr S Bull on behalf of the United Workers’ Union.
Ms J Baulch on behalf of Professionals Australia.
Ms K Wischer on behalf of the Australian Nursing & Midwifery Federation.
Ms A Moussa on behalf of the Victorian Ambulance Union Incorporated.
Mr J Arndt on behalf of the Australian Chamber of Commerce and Industry, Australian
Business Industrial and New South Wales Business Chamber, Aged and Community Services
Australian and Leading Age Services Australia.
Mr S Cahill and Mr D Tyler on behalf of the Australian Chamber of Commerce and Industry,
Australian Business Industrial and New South Wales Business Chamber.
Ms S Wellard with Mr S Harris on behalf of the Pharmacy Guild of Australia.
Mr B Ferguson and Ms R Bhatt on behalf of the Australian Industry Group.
Ms S Lo on behalf of the Australian Federation of Employers and Industries.
Hearing details:
2020.
Sydney (via video-link):
25 and 26 June.
Printed by authority of the Commonwealth Government Printer
PR720804
OF THE FAIR WORK COMMISSION THE $5
47
SCHEDULE
ACTU’s summary of the provisions made in relation to provisions made for paid special/pandemic leave for public sector employees, including health sector
employees, of the States and Territories – Schedule B to ACTU Outline of Submissions dated 11 May 2020.
Quantum of leave When applicable Reference
ACT Up to 12 months granted with
the same pay and
entitlements as if the
employee had been on
annual leave, with no
reduction of leave credits
When required to self-isolate by advice of chief medical officeror
employer and cannot work from home
Not ill but is required to care for a child as a result of COVID-19 related
school or child care changes and/or closure and cannot work fromhome
Emergency response – ACTPS
advice relating to staff
entitlements and access to
leave during the covid-19
outbreak (Appendix 1)
NSW Up to 20 days in total, before
other leave entitlements
need to be accessed
For employees who are unable to work because they are:
self-isolating due to travel or close contact COVID-19 exposure*
caring for family members sick with COVID-19
caring for family members due to closure of school/daycare
unable to attend work due to transport disruptions or workplaceclosure
a vulnerable health worker who following completion of a risk
assessment is unable to be redeployed to a lower COVID-19 risk
environment and is unable to work from home or self-isolation
Ministry of Health Workforce
Advice 8 April 2020 COVID -
19 (Appendix 2)
C2020-01 Employment
Arrangements during
COVID-19 Circular (Appendix 3)
NT Unclear if limit applies Eligible employees are:
Employees required to quarantine after returning from travel, but onlyif
travel commenced before 16 March 2020.
Employees required to quarantine because of contact with a confirmed
case
Employees caring for a dependant with COVID-19
These arrangements apply equally to rostered casual employees.
Employees who are unable to work from home, will be provided with special
leave for purposes of self-isolating. Special leave provided will count as
service for all purposes. Employees will not have to use recreation or
long-service leave in these circumstances.
Interactive content provided by the
Office of Public Employment:
https://ocpe.nt.gov.au/covid-
19-employment-
arrangements/what-to-do-if-
you-have-been-impacted
(due to format, this was unable to
be reproduced in hard copy)
[2020] FWCFB 3561
48
Quantum of leave When applicable Reference
QLD Up to 20 days paid special
pandemic leave
Upon application, an employee will be entitled to a maximum 20 days paid
“Special Pandemic Leave” for use when the employee is unable to attend
work and unable to perform work under flexible working arrangements
because they:
have an actual viral infection and have exhausted their sick leave
accruals; and/or
are required to care for immediate family or household member/s who
have an actual or suspected viral infection and have exhausted their
sick leave accruals; and/or
are required to care for children as a result of school or childcare
centres closures and have exhausted their sick leave accruals.
Office of Industrial Relations,
Public Sector Industrial
Relations
Directive 01/20
Minister for Industrial Relations
and Commission Chief
Executive Directive:
Employment Arrangements in
the Event of a Health Pandemic
(Appendix 4)
Brisbane City Council Policy
(Appendix 5)
Order of the QIRC varying the
Queensland Local Government
Industry (Stream A) Award
2017
(Appendix 6)
A chief executive at their discretion may grant up to a maximum 20 days paid
Special Pandemic Leave to a casual employee.
Employees will be paid their regular remuneration if they are willing and able
to attend work but are directed by the employer not to attendwork.
Additional paid leave entitlements are available to employees of Brisbane
City Council (20 days plus 10 days discretionary).
2 Weeks paid leave is available to local government employees.
[2020] FWCFB 3561
Quantum of leave When applicable Reference
SA Up to 15 days per year of
service Special Leave
with Pay for COVID-19
Where an employee is required to undertake self-isolation
Where sick leave is exhausted and the employee has tested positive
for COVID-19 and is unable to work, Chief Executives may grant
special leave with pay on a case-by-case basis
Determination of the
Commissioner for Public
Sector Employment 3.1:
Employment Conditions –
Hours of Work, Overtime and
Leave: Supplementary
Provisions for COVID-19
(Appendix 7)
TAS 20 days special leave For state service employees where:
(a) the relevant employee has exhausted his or her personal leave
entitlements and –
(i) has contracted COVID-19; or
(ii) is required to provide care or support to a member of the relevant
employee’s immediate family or household who has contracted COVID-19;
or
(b) the relevant employee –
(i) is required to enter isolation in accordance with a direction made in
relation to an authorisation of emergency powers made under section 40 of
the Emergency Management Act 2006 or a direction made under section16
of the Public Health Act 1997 ; or
(ii) is responsible for providing care or support to a member of therelevant
employee’s immediate family or household who is unable to attend school
or other care arrangements, due to the school or care arrangements being
unavailable due to COVID-19; or
(iii) is –
(A) unable to work for any other reason relating to COVID-19; and
(B) unable to work from home.
If considered necessary, a further period may be granted as determined by the
Head of Agency. The entitlement to this leave under the regulation may
be accessed by employees as defined by the regulation and includes
officers, casual, relief, seasonal and sessional employees.
State Service Management Office
Information Guide
Employment Arrangements -
Workforce Management andLeave
(including Special Leave –
Covid-19) During The
Coronavirus (Covid-19)
Response
(Appendix 8)
[2020] FWCFB 3561
50
Quantum of leave When applicable Reference
VIC Unlimited paid special leave Paid special leave applies to:
An employee who is not unwell but is required to self-isolate
Higher risk employees who cannot work from home (up to a period of
20 days, with further leave considered on a case-by-case basis)
Casual employees who have been employed and working on a
regular and systematic basis for at least three (3) months
In these situations employees do not have to exhaust other leave first.
If the employee has COVID-19 it is expected that the employee will utilise
their Personal (Sick) Leave, and other forms of leave. Access to further
paid Special Leave will be considered on a case-by-case basis.
Where an employee is absent from work to care for a family or household
member who is required to self-quarantine, it is expected that employees
will use their Personal/Carer’s Leave (where appropriate) or another type
of paid leave. Access to paid Special Leave will be considered on a case-
by-case basis.
Coronavirus Disease (COVID-19)
– Guidance Note on
Employment-Related Matters
Advice as at 28 April 2020
(Appendix 9)
WA Up to 20 days paid leave, with
pay
Leave calculated in the
same way as for annualleave,
excluding loading.
It does not affect existing
annual leave or long service
leave accruals.
An employee who has no personal or sick leave entitlements can
access COVID-19 leave if they have been diagnosed with COVID-19.
An employee who is required to self-isolate and cannot work from
home
An employee caring for someone with COVID-19
A person caring for someone who’s school has closed because of COVID-
19
Public Sector Labour Arangements
Circular 6/2020–Leave
arrangements for COVID-19
(Appendix 10)
Public Sector Labour Arrangements
Circular 7/2020–Government-
initiated changes related to COVID-
19 – workforce arrangements
(Appendix 11)
