The Fair Work Commission revealed on Wednesday it has found a “regulatory gap” limiting the number of employees that can use paid personal/carer’s leave to cover a period of self-isolation.
While some employees who have contracted COVID-19 may have an entitlement to paid personal/carer’s leave under the National Employment Standards, there are millions that don’t, including casuals, the FWC explained.
“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,” the FWC said in a statement.
In order to fill the gap, the commission has proposed changing 103 modern awards to provide an entitlement to unpaid “pandemic leave” and the flexibility to take annual leave at half pay.
By addressing the “regulatory gap”, the commission believes that the new entitlement to unpaid pandemic leave will enable more people to remain in employment.
The changes would mean employees are entitled to two weeks’ unpaid pandemic leave if they’re required to self-isolate or are otherwise prevented from attending work by measures taken by the government or medical authorities in response to the COVID-19 pandemic.
According to the commission, the entitlement would be available to full-time, part-time and casual employees, in full immediately, rather than accruing progressively during a year of service.
The commission has also proposed allowing employees to take twice as much leave on half pay in agreement with their employer.
“Instead of an employee taking paid annual leave on full pay, the employee and their employer may agree to the employee taking twice as much leave on half pay,” the commission said.
While confirming that it has considered broader measures to provide greater flexibility, such as the capacity for employers to direct employees to take annual leave, it has 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”.
Commenting on the commission’s proposals, Employsure managing director Ed Mallett said they’re not “widely revolutionary”.
“It was sort of happening anyway. But what they’re trying to do is just bring in some level of protection or structure for workers,” Mr Mallett said.
He explained that “pandemic leave” is essentially the FWC’s label for something that most employers and employees have been doing anyway.
“Really, all they’re trying to do is to stop the more unscrupulous employers who might be turning around and saying, ‘Don’t blame me if you’ve got to self-isolate. I’m going to cut you from my workforce’.
“We haven’t seen many example of that actually happening. But the Fair Work Commission is coming in and saying if we put a label on it and someone steps out and says, ‘I’ve got to self-isolate’, then employers won’t be able to fire them for that.”
Mr Mallett concluded that businesses currently have “bigger things to worry about”.