Last week, a five member Full Bench of the Fair Work Commission delivered its decision in the Paid Pandemic Leave (Health Sector Awards) case.
ABLA was the lead employer advocate in the contested hearing and represented the Australian Chamber of Commerce and Industry, Australian Business Industrial and the Business NSW.
The proceedings concerned a claim by several unions seeking uncapped paid leave for any employee (including casuals) working under a modern award in the ‘health sector’ which would apply where an employee was required to isolate, or in fact contracted COVID-19.
The claim would have seen workers covered by nine different awards obtain an entitlement to uncapped paid leave regardless of how their isolation came about or whether sick leave or workers compensation was available to the employee. Significantly, the proposed uncapped paid leave entitlement was also proposed for casual employees. The claim was supported by around 40 witnesses and expert evidence from one of Australia’s leading infectious diseases, biosecurity and epidemiology academics.
In its decision the Full Bench declined to grant the unions’ claim either in whole or in part.
Part of the Full Bench’s reasoning was a finding that the establishment of a paid pandemic leave provision would potentially cause significant financial difficulty for some employers, particularly those in the subsidised aged care sector and the NDIS-funded disability sector. Australia’s highly successful control of the spread of COVID-19 to date was also relied upon in determining not to grant the claim.
Significantly the Full Bench did not dismiss the claim, but adjourned the proceedings for the time indefinitely to monitor what is an ever-changing environment in respect of COVID-19 infection rates in Australia.
Should the situation change, the Full Bench indicated that it may relist and/or reconsider the matter. It has indicated however should the matter be relisted, leave would unlikely be granted where an employee would otherwise be entitled to workers compensation or where the worker is required to absent themselves because of circumstances unrelated to the workplace.
The Full Bench also identified that it would impose a high bar for the granting of paid leave to casual employees, should the matter ever be relisted.
It is of course hoped that the matter will not be relisted and that Australia’s current control over the spread of COVID-19 will be maintained.
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