Fair Work Commission shuts the door after COVID-19 has bolted

In April 2020 the Fair Work Commission was aware of a need and varied 99 modern awards to support the inclusion of "unpaid pandemic leave".

At the time it was also aware that there was a need to consider paid pandemic leave in respect of “health care workers” covered by a number of awards.

However, on 8 July the Fair Work Commission dithered and refused to vary identified “Health awards” to provide for paid pandemic leave.

This refusal came despite the strong suspicion that some private sector aged care workers in insecure employment were not declaring COVID-19 symptoms as they could not afford to stay home without suffering financial hardship and possible loss of ongoing employment.

The inevitable began to occur. COVID-19 infection numbers began to rise again in private sector aged care facilities in Victoria where there are now at least 440 active cases in 61 aged care facilities and the death toll for those in residential care stands at 47 elderly people.

In addition these 61 aged care facilities appear to be associated with another 78 COVID-19 cases.

Although Victoria has the highest death toll New South Wales is not far behind, with 29 elderly people in residential care dead since the start of the pandemic.

The national COVID-19 death toll in residential care stood at 78 on 29 July 2020 according to the Australian Government Dept. of Health. 

It was only on 27 July that the Fair Work Commission decided it was convinced there was a need for paid pandemic leave in the aged care sector*.

ABC News, 28 July 2020:

Aged care workers employed under three awards will be entitled to two weeks' paid leave if they are required to self-isolate due to having coronavirus symptoms or being a close contact of a confirmed case, following a ruling from the Fair Work Commission.

The amendments will come into effect from Wednesday, July 29, and last for three months.

Conditions attached to the paid leave include:

• Workers must be aged 17 or older and be likely to have worked during the self-isolation period
• Cannot be receiving any income — including other leave or JobKeeper — during their time in quarantine
• If workers test positive to the virus they will be provided with workers compensation leave, which will supersede the pandemic leave
• If the direction to self-isolate comes from a doctor, and not come the Government or employer, the worker must provide a medical certificate
• The entitlement extends to casual employees "engaged on a regular and systemic basis" and the payment would be based on their average earnings over the past six weeks.....

In its ruling, the FWC stated "it cannot be assumed that the current outbreak will remain confined to Victoria".

"The recent events in that state demonstrate how rapidly circumstances can change," the full bench of the commission found.

"Recent developments in New South Wales are not encouraging. The award of the entitlement remains necessary notwithstanding that the current locus of the pandemic is in Victoria."…...

Key points:

• The Fair Work Commission ruled the paid leave was necessary nationwide due to recent events demonstrating "how rapidly circumstances can change"
• The ruling follows submissions from the Australian Council of Trade Unions, the Health Services Union and the Australian Nursing and Midwifery Federation calling for paid pandemic leave to apply for all staff in aged care across the country until the end of September
• Only casual employees who can have been employed on a "regular and systemic basis" will be entitled to the paid leave
• The commission's ruling grants paid pandemic leave to staff working in residential aged care under the Aged Care Award, the Nurses Award and the Health Professionals Award.

NOTE
* See Fair Work Commission, Decisions, Health Sector Awards—Pandemic Leave, (AM2020/13), 27 July 2020