1
Fair Work Act 2009
s.158—Application to vary or revoke a modern award
Health sector awards– Pandemic Leave
(AM2021/15 and Ors)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT CLANCY
DEPUTY PRESIDENT DEAN
COMMISSIONER SPENCER
COMMISSIONER LEE SYDNEY, 24 MARCH 2021
Health sector awards – Pandemic Leave – Schedule X-Additional measures during the
COVID-19 pandemic – Schedule Y-Industry Specific Measures During the COVID-19
Pandemic – schedules due to cease operation.
Insertion of Schedule X in the Health Awards
[1] On 8 April 2020 a Full Bench of the Commission issued a decision1 on its own
initiative, varying 99 modern awards to insert a new schedule, Schedule X – Additional
measures during the COVID-19 pandemic including into the following awards (collectively,
the Health Awards):
Aboriginal and Torres Strait Islander Health Workers and Practitioners and
Aboriginal Community Controlled Health Services Award 2020 (ATSIHWACCHS
Award);
Aged Care Award 2010 (Aged Care Award);
Ambulance and Patient Transport Industry Award 2020 (Ambulance Award)
Health Professionals and Support Services Award 2020 (HPSS Award)
Medical Practitioners Award 2020 (Medical Practitioners Award);
Nurses Award 2010 (Nurses Award);
Pharmacy Industry Award 2020 (Pharmacy Award);
Social, Community, Home Care and Disability Services Industry Award 2010
(SCHCDSI Award); and
Supported Employment Services Award 2020 (SES Award).
[2] The Schedule X provisions in each award contain provisions establishing entitlements
to unpaid pandemic leave and the taking of twice as much annual leave at half pay. The
1 [2020] FWCFB 1837.
[2021] FWCFB 1596
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb1837.htm
[2021] FWCFB 1596
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Schedule X provisions in the Health Awards were expressed to cease operation on 31 July
2020.
[3] Applications by various unions to insert an entitlement to paid pandemic leave in the
Health Awards, and the responsibility for any extension of the operative period of the
Schedule X in the Health Awards, were referred to this Full Bench for determination.
[4] In a statement issued 29 July 20202, we expressed a provisional view that the Schedule
X provisions in the Health Awards should have their operation extended until 29 October
2020. No party opposed this provisional view, and a determination varying the Health Awards
accordingly was published on 31 July 2020.3
[5] In a decision dated 29 October 20204, we granted applications to further extend the
operation of the Schedule X provisions to 29 March 2021 in the Health Awards and a
determination was published on 29 October 2021.5
Insertion of Schedule Y in the Aged Care Award, Nurses Award and the HPSS Award
[6] We published a decision on 27 July 20206 (the July 2020 decision), determining to
vary the Aged Care Award, the Nurses Award and the HPSS Award in respect of employees
who are employed by residential aged care providers or are required to work in residential
aged care facilities, providing an entitlement to paid pandemic leave. This entitlement was
inserted as Schedule Y in the abovementioned three awards and was expressed to operate
until 29 October 2020.
[7] On 20 October 2020 we published a statement7 expressing the provisional view that
the operation of Schedule Y in the abovementioned three awards should be extended until 29
March 2021. Submissions opposing our views were filed by the Australian Chamber of
Commerce and Industry and Australian Federation of Employers and Industries.
[8] Submissions supporting our provisional view were filed by the Australian Council of
Trade Unions.
[9] Submissions relating to Commonwealth funding arrangements under the Support for
Aged Care Workers in COVID-19 (SACWIC) grant program were filed by The Australian
Government—Department of Health.
2 [2020] FWCFB 3986.
3 PR721438.
4 [2020] FWCFB 5768.
5 PR724065.
6 [2020] FWCFB 3940.
7 [2020] FWCFB 5578.
https://www.fwc.gov.au/documents/sites/health-sector-pandemic-leave/decisions-statements/pr724065.pdf
https://www.fwc.gov.au/documents/sites/health-sector-pandemic-leave/decisions-statements/2020fwcfb5768-291020.pdf
https://www.fwc.gov.au/documents/awardsandorders/html/pr721438.htm
https://www.fwc.gov.au/documents/sites/health-sector-pandemic-leave/decisions-statements/2020fwcfb3986.pdf
[2021] FWCFB 1596
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[10] On 29 October 2020 we published a decision8 (the October 2020 decision) confirming
our provisional view and extended the operation of Schedule Y in the abovementioned three
awards to 29 March 2021.
Applications for further extension of Schedule X and Schedule Y in the Health Awards
[11] On 3 March 2021 a Statement9 was issued advising parties that Schedules X and Y in
certain awards were due to expire on 29 March 2021. The Statement indicates that any party
who wished to extend the operation of the schedules in a particular award should make an
application by 22 March 2021.
[12] Applications to vary Schedule X have been received with respect to all the Health
Awards and applications to vary Schedule Y have been received with respect to the Aged
Care Award, Nurses Award and the HPSS Award.
[13] The applications seek to extend the operation of Schedules X and Y until 31 December
2021.
Consideration of extension for Schedule Y
[14] In the July 2020 decision, we determined that it was necessary for a paid pandemic
leave entitlement to be introduced for employees in the aged care sector in order to achieve
the modern awards objective in s 134 of the FW Act. In making this determination, we
considered the following matters to be of significance:
workers in the aged care sector are exposed to an elevated risk of being required to
self-isolate, and that risk was currently manifesting itself at least in Victoria;
such workers may not have access to paid leave entitlements in order to self-isolate;
the requirement for self-isolation is primarily to prevent the spread of infection and,
in the aged care sector, is critical and a matter in the public interest because of the
vulnerability of aged persons to COVID-19 fatalities;
the requirement to self-isolate may place low-paid employees in significant financial
difficulty and even distress;
there is a real risk that persons who do not have access to leave entitlements might
not report COVID-19 symptoms which would require them to self-isolate but might
seek to attend for work out of financial need, which represents a significant risk to
infection control measures;
industry financial assistance measures announced by the Commonwealth would
substantially if not wholly remove the cost of any paid pandemic leave entitlement to
employers;
the effectiveness of infection control measures has a clear relationship to the
restoration of the health of the national economy; and
8 [2020] FWCFB 5768.
9 [2021] FWC 1148.
https://www.fwc.gov.au/documents/awardmod/variations/2020/2020fwc1148.pdf
[2021] FWCFB 1596
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the establishment of a paid pandemic leave entitlement for aged care workers is
necessary to support them in their critical and essential work.
[15] At the time of the July 2020 decision, the position with respect to the COVID-19
pandemic was deteriorating significantly, particularly in Victoria. The position deteriorated
further after the July decision and reached a peak in early August 2020. More recently, the
position has significantly improved. The Commission has published an Information Note—
Covid-19 situation update, which was most recently updated on 19 March 2021. The
Information Note provides an update of the current rate of transmission of COVID-19 in
Australia, with a particular focus on the situation in Victoria and New South Wales (NSW).
[16] In the October 2020 decision, we stated the following regarding Schedule Y:
“It is too early to say that the current improving situation will be sustained, and it is
essential that infection control measures such as the paid pandemic leave entitlement
remain in place for the time being. The date of 29 March 2021, when the Schedule X
entitlements will cease operation (subject to any further extension) in line with the
modified JobKeeper scheme, represents a convenient end point for the extension of
the entitlement. As we emphasised in stating our provisional view in the October
statement, the adoption of that date is not intended to prevent any party from making
an application for the entitlement to cease at an earlier date.
…
We are not prepared to adopt the ACTU proposition that the entitlement be extended
in duration indefinitely during the currency of the COVID-19 pandemic. It was
adopted as an emergency measure for a sector affected by the pandemic in a
particularly significant way, and it involves the highly unusual extension of a paid
leave entitlement to casual employees. It is appropriate therefore that it operate in a
time-limited way and be the subject of regular review.”10
[17] The emergency circumstances which caused us to award the paid pandemic
entitlement for aged care employees do not appear to have pertained for some time now. It is
therefore our provisional view that Schedule Y should not be further extended.
Consideration of extension of Schedule X
[18] We are however minded to grant the extension of the operation of Schedule X on the
basis that as recently as February 2021, community transmission of COVID-19 has occurred
within Australia. Without the continued operation of Schedule X we are of the view that there
would be a ‘regulatory gap’ in the award safety net concerning employees who are required to
self-isolate. Continuing access to unpaid pandemic leave will enable more people to remain in
employment and will support the important public policy objective of encouraging those who
should self-isolate to do so, thereby limiting the spread of COVID-19 in workplaces and
allowing businesses to continue to operate.
10 [2020] FWCFB 5768, [29] – [31].
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb5768.htm
https://www.fwc.gov.au/documents/documents/resources/covid-19-information/information-note-covid-19-situation-update-2021-03-19.pdf
[2021] FWCFB 1596
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Next steps
[19] We invite interested parties to file written submissions in response to the above
provisional views on or before 5pm Thursday 25 March 2021. Submissions should be sent
to amod@fwc.gov.au in word version and include the relevant award title in the subject line.
[20] If any submissions are filed opposing our provisional views then a hearing will take
place at 4pm on Friday 26 March 2021, by telephone. Parties wishing to appear at the
hearing are to provide the name, direct number and organisation by 12pm Friday 26 March
2021 to chambers.hatcher.vp@fwc.gov.au.
[21] In the event that no submissions are filed opposing our provisional views then the
hearing proposed will be vacated and we will vary each of the awards
abovementioned accordingly.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR728048
OF THE FAIR WORK THE F MISSION THE
mailto:chambers.hatcher.vp@fwc.gov.au
mailto:amod@fwc.gov.au
