Ch-Ch-Changes: Modern Awards amended in light of COVID-19

A Full Bench of the Fair Work Commission yesterday announced that new schedules will be immediately added into 99 of the 121 modern awards, which cover an estimated 4.36 million private sector employees.

In summary, the changes are:

1. to provide up to 2 weeks of unpaid 'pandemic leave', and

2. to allow employees and employers to agree to take annual leave at 'half-pay'.

These amendments will apply from the next full pay cycle of any employee covered by one of the amended awards, and will apply until 30 June 2020 or such date as extended. 

The Commission decided against more amendments at this stage, “in order to provide a quick response to the current crisis and in an effort to attract broad support for the measures proposed”. 

Pandemic leave

Pandemic leave is a full 2 weeks of unpaid leave if an employee is required to self-isolate or is otherwise prevented from attending work due to measures taken by government or medical authorities in response to the COVID-19 pandemic.  The leave must commence before 30 June 2020 but may end after that time.  

The 2 week entitlement will not be pro-rated based on permanency status or hours worked, and it is in addition to all other existing leave entitlements.  It also doesn’t prevent employers from offering additional leave to their staff, whether paid or unpaid.

Pandemic leave counts as service for the purposes of accruing entitlements under the National Employment Standards (NES) and the modern awards and is a ‘workplace right’ for employees that are entitled to it.

Annual leave at ‘half-pay’

Agreements to take annual leave at ‘half-pay’ must be in writing, to be retained by the employer as an employee record.  They are available to permanent employees (noting that casuals don’t have an entitlement to annual leave).  As with pandemic leave, ‘half-pay’ leave must commence before 30 June 2020 but may end after that time.

Importantly, there is no obligation on either employees or employers to enter into an agreement to take annual leave at ‘half-pay’.  It is merely an option to allow greater flexibility.

This new leave option represents a slight shift from the previous restrictions under the Fair Work Act.  Before these amendments (see our earlier article), an agreed period of ‘half-pay’ annual leave would have required a split of full-paid annual leave and authorised leave without pay.  The unpaid leave portion of those arrangements did not count as service for the purpose of accruing entitlements.  

This amendment means that the ability to take annual leave for twice the period at half-pay:

• is now expressly authorised under the relevant modern awards, if agreed in writing between the employer and employee, and

• will count as service for the purposes of accruing entitlements under the NES and the award.

Which awards have been amended?

A new schedule has been inserted into 99 awards in this first phase, which is the vast majority of modern awards.  Of those awards, the schedules inserted into the Clerks – Private Sector, Hospitality Industry, and Restaurant Industry Awards are slightly amended because of recent amendments to those awards which already included the ability to agree to take annual leave at ‘half-pay’. 

The schedule has also been inserted into the Educational Services (Teachers) Award 2010, but the ‘half-pay’ annual leave provisions won’t apply to most school teachers given the general requirement that they to take annual leave during school holidays. 

Discussions are ongoing regarding whether the schedule should be inserted into the construction industry awards.[1]

The only modern awards that have NOT been amended (at this stage) are those in industries that have been the least impacted by COVID-19 or have a higher percentage of enterprise agreements. Specifically, the schedule has NOT been added (at this stage) to the construction awards,[2] the maritime sector awards,[3] the mining and resource sector awards,[4] and four other awards.[5] 

So, if a modern award applies to your workplace and it does not fall within those categories, it has been amended.

Other amended modern awards

As mentioned above, these amendments add to other recent amendments to modern awards; specifically, to the Clerks – Private Sector, Hospitality Industry, and Restaurant Industry Awards. You can find our summary of the amendments to the Clerks award here.

There are likely to be more changes in the future, especially for those industries in the front line.  We will keep you updated.   

If you have any questions, please feel free to give us a call. 

Authors: Ryan Murphy and James Mattson

[1] Building and Construction General On-site Award 2010, Joinery and Building Trades Award 2010, and Mobile Crane Hiring Award 2010.

[2] Ibid.

[3] Coal Export Terminals Award 2020, Dredging Industry Award 2010, Marine Towage Award 2010, Port Authorities Award 2020, Ports, Harbours and Enclosed Water Vessels Award 2010, Seagoing Industry Award 2010, and Stevedoring Industry Award 2010.

[4] Black Coal Mining Industry Award 2010, Gas Industry Award 2010, Hydrocarbons Field Geologists Award 2010, Hydrocarbons Industry (Upstream) Award 2020, Maritime Offshore Oil and Gas Award 2010, Mining Industry Award 2010, Oil Refining and Manufacturing Award 2020, and Professional Diving Industry (Industrial) Award 2010.

[5] Electrical Power Industry Award 2020, Fire Fighting Industry Award 2010, Electrical, Electronic and Communications Contracting Award 2010, and Plumbing and Fire Sprinklers Award 2010.