04 Aug COVID-19 DEVELOPMENTS IN EMPLOYMENT LAW
We continue to see various developments in employment law as a result of COVID-19.
Award Variation Decisions
There have been a number of Award variation decisions being made in the last week, which employers covered by effected Awards need to be aware of.
The Health Sector Awards Full Bench has issued a decision granting an entitlement to paid pandemic leave for employees working in the aged care industry who are covered by the following Awards:
1. Aged Care Award 2010;
2. Health Professionals and Support Services Award 2020; and
3. Nurses Award 2010.
The entitlement is for employees who are required by their employer or a Government medical authority or on the advice of a medical practitioner to self-isolate because they exhibit COVID-19 symptoms or have come into contact with a person suspected of having contracted COVID-19. The entitlement is limited to up to two (2) weeks’ paid leave on each occasion of self-isolation.
The determinations insert a temporary new Schedule Y.
The variations took effect from 29 July 2020 and will operate for an initial period of three (3) months until 29 October 2020.
Manufacturing and Graphic Arts
The Full Bench has issued a decision granting an application by the AMWU in relation to the Manufacturing and Associated Industries and Occupations Award 2020 and the Graphic Arts and Printing and Publishing Award 2010.
The Full Bench concluded that Schedule X in both Awards would be reinstated (noting they had ceased operation prior) with an operative date of 27 July 2020 until 30 September 2020.
The Full Bench has also issued a decision granting an application by the SDA to extend the operation of Schedule X – Additional measures during COVID-19 until 30 September 2020 in the following Awards:
1. Fast Food Industry Award 2010;
2. General Retail Industry Award 2010;
3. Hair and Beauty Industry Award 2010; and
4. Storage Services and Wholesale Award 2020.
Other Award Changes
The Fair Work Commission has extended Schedule I in the Vehicle, Repair Services and Retail Award 2020. Schedule I was previously extended to operate until 31 July 2020. It has been extended again until 31 August 2020.
Further, the Fair Work Commission has varied Schedule X (which provides unpaid pandemic leave and annual leave at half pay) in the following Awards in the health sector:
1. Aboriginal Community Controlled Health Services Award 2020;
2. Aged Care Award 2010;
3. Ambulance and Patient Transport Industry Award 2020;
4. Health Professionals and Support Services Award 2020;
5. Medical Practitioners Award 2020;
6. Nurses Award 2010;
7. Pharmacy Industry Award 2020;
8. Social, Community, Home Care and Disability Services Industry Award 2010; and
9. Supported Employment Services Award 2020.
Any leave taken under Schedule X now needs to start by 29 October 2020 (rather than before 31 July 2020 as previously required).
Schedule X applies in these Awards until a further order is issued.
We are now starting the see a number of JobKeeper dispute decisions being made highlighting the importance of employers making sure that the Fair Work Act JobKeeper provisions are complied with. We have summarised one of the more recent cases below.
Transport Workers’ Union of Australia Queensland Branch v Prosegur Australia Pty Limited  FWCFB 3655
This case involved an appeal made by the Transport Workers’ Union of Australia (“TWU”) against a decision of Deputy President Sams. The decision was about a “JobKeeper enabling direction” that normal working hours would reduce to 50 hours per fortnight.
Deputy President Sams held that the direction was not unreasonable. However, the TWU argued the decision was made in error because it involved a misconstruction of the statute and an error of fact.
A Full Bench quashed the decision concluding the decision used an incorrect approach to the construction of the “reasonableness” of the direction because it failed to properly take into account the relevant circumstances of employees.
The Full Bench considered that certain propositions should guide the determination of the matter, including relevantly:
1. that the assessment of the reasonableness of the direction must take into account in a significant way the statutory, Award, agreement and contractual entitlements of the employees affected by the direction. This includes whether the deprivation or reduction of pre-existing entitlements to hours of work disproportionately and unfairly affects one category of employees over another; and
2. that full-time and part-time employees may, depending on the extent of accruals, have access to leave entitlements to supplement their income, and full-time employees may have access to accrued rostered days off.
The Full Bench set aside the JobKeeper direction and substituted it for the modified JobKeeper-enabling directions, which reduce the minimum fortnightly hours of full-time employees to 60 hours. Separate assurances were provided for part-time and casual employees.
The case acts as an important reminder to ensure that JobKeeper directions issued are “reasonable” considering the circumstances of your employees.
If you require any advice regarding the application of the new Award variation decisions or ensuring compliance with the JobKeeper provisions, please get in touch with the team at HR Law.