Coronavirus: FWC proposes unpaid and flexible leave ‘to protect jobs’

The commission has proposed two weeks’ unpaid pandemic leave and extra annual leave flexibility for millions of workers.

Fair Work Commission President Iain Ross. Picture: Gary Ramage

The Fair Work Commission has proposed two weeks’ unpaid pandemic leave and extra annual leave flexibility for millions of award-­reliant workers in a move designed to keep more employees in jobs during the coronavirus pandemic.

A commission full bench headed by president Iain Ross on Wednesday proposed changes to 103 awards, including a new temporary workplace right giving workers, including casuals, access to unpaid pandemic leave when they needed to enter self-isolation.

The full bench also proposed ­allowing employees, by agreement with their employer, to take twice the amount of their accrued annual leave at half-pay. It said the changes were being proposed given the “unique circumstances” pertaining to the pandemic and they would operate until June 30.

“Some employees required to self-isolate may be able to access paid or unpaid leave,” the full bench said. “But for most award-covered employees, this will depend upon the agreement of their employer.

“If the employer does not consent, the employee may be placed in the invidious position of either contravening public health directions or guidelines, or placing their employment in jeopardy.”

Legal protection against dismissal might 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, was not displaying symptoms and was not unfit for work because of personal illness.

It said the unpaid pandemic leave could address the gaps in leave entitlements and protections against dismissal. “By addressing the regulatory gap, the new entitlement to unpaid pandemic leave will enable more people to remain in employment,’’ the full bench said

The measure, which it said might be regarded by some as minimalist, would support the important public policy objective of encouraging those who should self-isolate to do so, limiting the spread of COVID-19 in workplaces and ­allowing businesses to continue to operate.

In allowing workers by agreement to take annual leave at half-pay, the commission decided against giving employers the cap­acity to direct employees to take annual leave; and backing measures to facilitate cuts to the working hours of full-time and part-time employees. “We have adopted a more limited approach at this stage to provide a quick response to the current crisis and in an effort to ­attract broad support for the measures proposed.”

Attorney-General and Industrial Relations Minister Christian Porter welcomed the commission move, which he said would provide employers and employees with a greater ability to manage the pandemic’s impacts.

He said the proposal reflected changes recently endorsed across key industry sector awards including restaurants, hospitality and the private sector clerical awards.

“Modern awards cover about 20 per cent of all employees in Australia and the FWC initiative will impact the vast majority of them,” he said.

The government would tell the commission the new JobKeeper wage subsidy payment would be available to employees on unpaid leave, provided the employee and employer meet the payment’s eligibility criteria.