A temporary entitlement for paid pandemic leave for residential aged care employees covered by the Aged Care, Health Professionals and the Nurses Award has been arranged by the Fair Work Commission (FWC). From 29 July 2020, there is an entitlement for up to two weeks paid leave, available until 29 October 2020.

In April 2020 the FWC, in response to the COVID-19 pandemic, determined to vary 99 Awards to include provisions establishing an entitlement to unpaid pandemic leave. Since that time there has been a sustained campaign by various union bodies to implement paid pandemic leave broadly to workers who would otherwise be financially compelled to work despite being infected. The FWC did not consider a change necessary at that time.

As the situation in Victoria escalated, the Victorian Government announced a one-off $1,500 payment to financially support aged care workers who had been instructed to self-isolate or quarantine at home because they were either diagnosed with COVID-19 or were in close contact of a confirmed case, but could not rely on sick leave while absent from work.

The Commonwealth added to the Victorian Government’s response and announced grants to employers in declared hotspots, to assist with wage costs. The grants were to be paid to prevent aged care workers working at more than one facility to prevent chains of transmission between facilities, to ensure that aged care providers can engage and train additional staff where existing staff are unable to work because of self-isolation, and to ensure aged care providers can provide alternative accommodation so that workers who live or work in hotspots can continue to work.

By July 2020, the FWC identified there had been a significant change in circumstances over the preceding months, to justify a variation of the awards. The FWC concluded, on review of submissions, that there was a ‘clearly manifested elevated risk of exposure to COVID-19 infections and of being required to self-isolate in the residential aged care sector’ and the appropriate response was to vary the current awards.

The FWC considered the following factors as weighing significantly in favour of the introduction of paid pandemic leave entitlements:

• The requirement for self‑isolation is primarily to prevent the spread of the infection which, in the aged care sector, is especially critical because of the vulnerability of the aged
• The requirement to self-isolate might be in the public’s interest however, without access to paid leave entitlements, the employee bears the cost of this
• For low paid employees, as is predominantly the case in the aged care sector, this is likely to place them in significant financial difficulty
• There was a real risk that employees who do not have access to leave entitlements might not report COVID-19 symptoms which might require them to self-isolate, and might seek to attend work out of financial need. This represents a significant risk to infection control measures.

The temporary variation by the FWC means that:

• Employees covered by the Aged Care, Health Professionals and the Nurses Award are entitled to paid pandemic leave;
• The leave is for up to 2 weeks on each occasion they are required to self-isolate because they display symptoms of COVID-19 or have come into contact with a person suspected of having contracted COVID-19;
• Workers who are able to work at home or remotely during self-isolation are not entitled to paid leave;
• The entitlement extends to casual employees engaged on a regular and systematic basis and would entitle them to payments based on an average of their earnings over the previous 6 weeks; and
• The entitlement will initially operate for a period of 3 months.

The FWC confirmed in its decision that if a worker is then diagnosed with COVID-19, they become entitled to workers compensation benefits, and paid the pandemic leave entitlement would cease to apply.

The union bodies submitted that to exclude casual employees who were not employed on a regular and systematic basis was in contradiction to the intended purpose of the variation to the award. The FWC has not placed any minimum time period on the ‘regular and systematic’ criterion, such that this may in fact be a low threshold in which to meet, in any event.

The decision by the FWC to vary this award ensures that the benefits of this extend nationally. The FWC has also illustrated that it will, on request or on its own initiative, make temporary variations urgently and in response to the workplace needs of this pandemic.

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.