A full bench of the Fair Work Commission (FWC) has on its own initiative proposed two separate potential versions of changes to a raft of awards which could see changes to unpaid leave and annual leave arrangements.

The 35 page determination published by the FWC goes into detail about the effect that the COVID-19 pandemic is having on business and employment more generally.

The Full Bench then goes through the effect of the most recent COVID-19 flexibility changes to awards. The statement identifies a regulatory gap and notes that in order to fulfil the award objectives of providing a fair safety net, temporary amendments are required to be inserted into some awards in order to allow for new arrangements in coping with the pandemic.

The first version of the proposed changes would see provision for:

  • Access for workers who are infected with the COVID-19 to two weeks unpaid leave in order to self-isolate and recover
  • By agreement between employers and employees, the ability to take double the amount of annual leave at half pay.

It is proposed that this version of the changes would apply to a number of awards in industries that have been particularly hard hit by the COVID-19 pandemic, referred to as Phase 1 Awards. (It should be noted that it is not proposed that such changes would be made to all awards.)

The second version of the changes would omit the changes to annual leave and would apply to those awards that have already been amended to make provision for flexible annual leave arrangements.

It is proposed that the new provisions will operate until 30 June 2020.

The changes provide a further safety net component for a number of employees in a situation where there is no current provision for unpaid leave to cover pandemics. Further, the proposed changes to annual leave will (if implemented) provide employers and employees the ability to negotiate over alternative arrangements to stand down.

Any submissions supporting or opposing the FWC’s provision view must be lodged by 4pm today, Monday, 6 April 2020. If any submissions are made opposing the provisional view expressed by the FWC, a hearing by telephone will be held on Wednesday, 8 April 2020 at 2pm to determine the issue.

The above content is commentary rather than legal advice and was prepared on the basis of applicable legislation, government programs and initiatives that were in place as of the date of publication. Given the ongoing evolution of both the COVID-19 pandemic and frequent consequential changes to the various laws and programs within all Australian states and territories, readers should seek legal advice on the current situation as applicable to their specific circumstances before taking any action in relation to the above.