| [2020] FWCFB 5768 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.157 – FWC may vary etc. modern awards if necessary to achieve modern awards objective
Health sector awards– Pandemic Leave
(AM2020/13)
VICE PRESIDENT HATCHER |
SYDNEY, 29 OCTOBER 2020 |
Health sector awards – Pandemic Leave – Schedule X-Additional measures during the COVID-19 pandemic – Schedule Y-Industry Specific Measures During the COVID-19 Pandemic – schedules due to cease operation – extending the operation of Schedule X and Schedule Y
[1] On 8 April 2020 a Full Bench of the Commission issued a decision 1 on its own initiative, varying 99 modern awards to insert a new schedule, Schedule X – Additional measures during the COVID-19 pandemic. This included the following awards (collectively “Health awards”):
• Aboriginal Community Controlled Health Services Award 2020 (ACCHS Award);
• Aged Care Award 2010 (Aged Care Award);
• Ambulance and Patient Transport Industry Award 2020 (Ambulance Award)
• Health Professionals and Support Services Award 2020 (HPSS Award)
• Medical Practitioners Award 2020 (Medical Practitioners Award);
• Nurses Award 2010 (Nurses Award);
• Pharmacy Industry Award 2020 (Pharmacy Award);
• Social, Community, Home Care and Disability Services Industry Award 2010 (SCHCDSI Award); and
• Supported Employment Services Award 2020 (SES Award).
[2] Schedule X in each award contained provisions establishing entitlements to unpaid pandemic leave and the taking of double the period of annual leave at half pay. For relevant purposes, the Schedule X provisions in the Health Awards were expressed to cease operation on 31 July 2020.
[3] Applications by various unions to insert an entitlement to paid pandemic leave in the Health Awards, and the responsibility for any extension of the operative period of the Schedule X in the Health Awards, were referred to this Full Bench for determination.
[4] In a decision published on 27 July 2020 2 (July decision), this Full Bench determined to vary the Aged Care Award, and the Nurses Award and the HPSS Award in respect of employees who are employed by residential aged care providers or are required to work in residential aged care facilities, to provide an entitlement to paid pandemic leave. This entitlement was inserted as Schedule Y in the abovementioned three awards by determinations published on 29 July 2020,3 and was expressed to operate until 29 October 2020.
[5] In a statement issued on 29 July 2020, we expressed a provisional view that the Schedule X provisions in the Health Awards should have their operation extended until 29 October 2020. No party opposed this provisional view, and a determination varying the Health Awards accordingly was published on 31 July 2020. 4
[6] This decision concerns whether the Schedule X provisions in the Health Awards and the Schedule Y provisions in the Aged Care Award, the Nurses Award and the HPSS Award should be extended beyond 29 October 2020 in their operation.
[7] In a statement published on 16 September 2020, a separately-constituted Full Bench expressed a provisional view that the operation of Schedule X in 71 awards (not including the Health Awards) should be extended until 29 March 2021, in accordance with the equivalent extension to the Australian Government’s JobKeeper scheme. In its decision of the same date, it stated that it did “not intend to vary any of the Health Sector Awards. Any party wishing to vary these awards to extend the operative date of Schedule X will be required to file an application.” 5 No party opposed the provisional view. In a decision issued on 24 September 2020,6 the Full Bench made the extension to the 71 awards and a further 3 awards. In this decision, the Full Bench said:
“[9] As we mentioned in the 16 September Statement, the Coronavirus Economic Response Package (Jobkeeper Payments) Amendment Act 2020 received Royal Assent on 3 September 2020. The amendment extends the operation of the JobKeeper scheme, with some amendments, until 29 March 2021. On 4 September 2020, the Commission published a Fact Sheet about the amendment.
[10] The JobKeeper scheme is part of a range of measures introduced by both State and Federal Governments during the course of the COVID-19 pandemic. The Commission has published an Information Note-Government responses to the COVID-19 pandemic which has been updated regularly since it was first published on 25 March 2020. The most recent update to the Information Note was on 18 September 2020.
[11] The observations made in the 8 April 2020 decision in respect of the basis for the initial insertion of Schedule X into the relevant awards remain apposite. In particular, the COVID-19 pandemic is still in progress and without the continued operation of Schedule X there would be a ‘regulatory gap’ in the award safety net concerning employees who are required to self-isolate. Continuing access to unpaid pandemic leave will enable more people to remain in employment and will support the important public policy objective of encouraging those who should self-isolate to do so, thereby limiting the spread of COVID-19 in workplaces and allowing businesses to continue to operate.
[12] The observations made in the 8 April 2020 decision regarding the s.134 considerations and the necessity for the inclusion of Schedule X in these awards (in order to ensure that they achieve the modern awards objective) remain cogent.
[13] For the reasons set out above we are satisfied that the variation of each of these awards to extend the operation of Schedule X until 29 March 2021 is necessary to ensure that these awards achieve the modern awards objective.”
[8] Variation determinations for the 74 awards were issued together with the decision.
[9] Since 21 October 2020, the following applications have been filed pursuant to s 158 of the Fair Work Act 2009 (FW Act) seeking that the following awards be varied to extend the operative date of Schedule X to 29 March 2021:
• Application by the Health Services Union (HSU) and the United Workers’ Union (UWU) to vary the ACCHS Award;
• Application by the HSU, UWU and the Australian Nursing and Midwifery Federation (ANMF) to vary the Aged Care Award;
• Application by ANMF to vary the Nurses Award;
• Application by the UWU to vary the Ambulance Award;
• Application by the HSU and UWU to vary the HPSS Award;
• Application by the HSU and the Australian Salaried Medical Officers’ Federation to vary the Medical Practitioners Award;
• Application by the HSU, Association of Professional Engineers, Scientists and Managers Australia and the Shop, Distributive and Allied Employees’ Association to vary the Pharmacy Award;
• Application by the Australian Municipal, Administrative, Clerical and Services Union (ASU), the UWU and the HSU to vary the SCHCDSI Award;
• Application by the ASU, the UWU and the HSU to vary the SES Award; and
• Application by Mr Joshua Gomperts to vary the Ambulance Award.
[10] On 27 October 2020, parties were requested to advise whether they opposed any of the above applications to extend the operation of Schedule X in respect of the Health Sector Awards. Submissions advising that the applications were not opposed were received from:
• the Australian Chamber of Commerce and Industry, Australian Business Industrial, NSW Business Chamber Ltd, Aged & Community Services Australia and Leading Age Services Australia (ACCI);
• the Australian Industry Group;
• the Australian Federation of Employers and Industries (AFEI); and
• the Pharmacy Guild of Australia.
[11] No advice was received that any party opposed the extension sought in the applications.
[12] For the same reasons as expressed by the Full Bench in the 24 September 2020 decision, quoted in full above, we consider that the applications for extension of the operation of the Schedule X provisions in the Health Awards should be granted. Variation determinations will be issued in conjunction with this decision.
[13] On 20 October 2020 we published a statement 7 (October statement) in which we expressed the provisional view that the operation of Schedule Y in the Aged Care Award, Nurses Award and the Health Professionals Award should be extended until 29 March 2021, consistent with the position applying to unpaid pandemic leave in a number of modern awards. We invited interested parties to file submissions in response to our provisional view by 5.00pm on Monday 26 October 2020. Submissions were filed by the Australian Council of Trade Unions (ACTU), ACCI and AFEI. The Australian Government, Department of Health also provided additional information.
ACTU
[14] The ACTU made submissions on its own behalf and on behalf of the HSU and ANMF. It supported our provisional view insofar as it provides for some extension of the duration of the entitlement to paid pandemic leave in the three awards, but submitted that a longer term duration of the entitlement is desirable and it would be more appropriate to grant an extension that does not require the entitlement to be revisited or justified again at set or random intervals. The ACTU seeks an entitlement expressed as being available solely in relation to the COVID-19 pandemic that remains in place until this pandemic is over. It submitted that such entitlement could be reassessed on application or on the Commission’s own initiative.
[15] It pointed to the Commission’s acceptance that relevant employees covered by the three awards are at elevated potential risk of actual or suspected infection and this risk has manifested “in actuality”. In support of its position, the ACTU submitted that:
“• the paid pandemic leave entitlement serves the public interest by reducing the risk of the spread of the disease through eliminating the economic incentive to work in workplaces where there is an elevated risk that infections will spread;
• the paid pandemic leave entitlement is distinguishable from other temporary award variations which lowered the safety net to reduce the economic burden on employers caused by the secondary effects of the pandemic (such as government trading restrictions, restrictions on movement and reduced demand) in an effort to retain employment;
• the expert evidence adduced in this matter has established that the COVID-19 pandemic could continue for two years or more, and that the number of infections can escalate quickly; and
• having proven once that the entitlement was justified, the applicants ought not to be required to do so again in circumstances where the risk has manifested and the pandemic is ongoing.
ACCI
[16] ACCI opposes our provisional view to extend Schedule Y until 29 March 2021 for four reasons:
(1) to the extent that the Commonwealth Government’s initiatives to provide financial assistance to the residential aged care sector were significant to the Full Bench’s decision to introduce the paid pandemic leave entitlement in the form of Schedule Y, any extension of that entitlement should have regard to the continuing availability of that funding;
(2) it is not necessary that the Schedule Y entitlement align with the Schedule X entitlement (which in turn is aligned with the Commonwealth Government’s JobKeeper scheme). In the circumstances such alignment is not appropriate;
(3) the financial position of the aged care sector warrants caution in determining how long the entitlement should be extended for; and
(4) the 5 month extension of the paid leave entitlement is excessive having regard to the existing COVID-19 scenario facing Australia.
[17] In relation to the first proposition, the ACCI submits that its understanding is that additional Commonwealth funding to cover the costs of employees who are not at work because they have been diagnosed with COVID-19, have been experiencing COVID-19 symptoms, require testing or are subject to self-isolation or quarantine has been extended only until 30 November 2020 and, accordingly, the ACCI would not oppose an extension until that date. It submits that consideration of any further extension of the Schedule Y provisions should not occur until closer to 30 November 2020, when the relevant Commonwealth funding position will be clearer, the Full Bench will be better placed to assess the COVID-19 situation and the parties may be better resourced to direct submissions and potentially evidence to the relevant matters at hand.
[18] In relation to the second proposition, the ACCI submits that while there is a rationale to align the Schedule X provisions with the extension of the modified JobKeeper scheme until 29 March 2021, it is not necessary or appropriate to align the Schedule X entitlement with the Schedule Y entitlement. Different considerations apply to the Schedule Y entitlement, since the consequences of its take-up are more significant, its take-up is more likely, its costs may not be recoverable for employers in a precarious financial position, hardship/disaster payments in various states and territories continue to apply, and there is no “regulatory gap” that needs to be closed.
[19] As to the third proposition, the ACCI submits that the evidence already before the Full Bench shows that the aged care industry is in a precarious position and in residential care there is no existing capacity to pay for any additional costs or liabilities. The ACCI stated that the pandemic has taken a considerable and unsurprising toll on the aged care industry, noting in accordance with instructions from members that bed occupancy rates have gone down due to clients delaying entry into aged care, customers withdrawing from aged care and the ordinary attrition rates. These matters warrant caution in determining how long the entitlement should be extended for.
[20] As to the fourth proposition, the ACCI submits that at the time of its submission, Victoria had recorded no new COVID-19 cases and no new deaths, and the relevant numbers nationally continued to remain extremely low, and the currently available infection information does not support an extension as long as 5 months.
AFEI
[21] The AFEI opposes any extension of the Schedule Y provisions. It submits that:
• the data on the COVID-19 pandemic, including in the aged care sector, has significantly improved since Schedule Y was introduced such that its extension is unnecessary;
• as at 25 October 2020, there were only 3 active cases in aged care facilities in Victoria;
• since July 2020, multiple government measures have been implemented in the fight against COVID-19 which have been successful in flattening the curve, such that there is not at this time any “elevated risk” or “demonstrated threat to the aged care system”;
• these measures include the provision of face masks and shields and respirator masks to aged care providers, support for aged care residents who temporarily relocate to live with their family due to concerns about COVID-19, pandemic disaster leave payments available in each of the States, and the adoption of recommendations concerning infection control in aged care facilities;
• extension of unpaid pandemic leave should not automatically equate with the extension of paid pandemic leave, and the cost of paid pandemic leave remains a significant factor for employers in the aged care industry; and
• there was a lack of evidence specific to aged care and COVID-19 infection that had been advanced to support the Commission’s provisional view.
Australian Government – Department of Health
[22] The submissions of the Australian Government – Department of Health, which concerns Commonwealth funding arrangements under the Support for Aged Care Workers in COVID-19 (SACWIC) grant program, are attached to this decision.
ACTU – in reply
[23] The ACTU filed submissions in reply to those of the ACCI and the AFEI. It submitted that:
• it is not correct that the SACWIC grant program is the sole source of federal funding that may be drawn upon to assist in meeting the costs of the paid pandemic leave entitlement;
• in the recent Federal Budget, a second round of COVID-19 supplements of $217.6 million would be paid this month, to be used for “infection prevention and control and additional staff costs” (among other purposes), and $8.4 million has been allocated to supplementary payments to help cover “quarantine costs”;
• these funds are in addition to the $61.3 million Aged Care Support Program, which provides reimbursements to residential and home care providers nationally over the period 24 February 2020 – 31 May 2021 for (among other things) “replacing existing staff who are infected or isolated due to COVID-19” and which, while not paying for a worker on paid pandemic leave, pays for the worker who replaces them and thus potentially allows for cost neutrality or better to be achieved; and
• the SACWIC grant program has already twice been extended, there is a potential for it be extended further, and the program never applied in the first place other than in declared COVID-19 hotspots.
Consideration
[24] In the July decision, we determined that it was necessary for a paid pandemic leave entitlement to be introduced for employees in the aged care sector in order to achieve the modern awards objective in s 134 of the FW Act. In making this determination, we considered the following matters to be of significance:
• workers in the aged care sector are exposed to an elevated risk of being required to self-isolate, and that risk was currently manifesting itself at least in Victoria;
• such workers may not have access to paid leave entitlements in order to self-isolate;
• the requirement for self-isolation is primarily to prevent the spread of infection and, in the aged care sector, is critical and a matter in the public interest because of the vulnerability of aged persons to COVID-19 fatalities;
• the requirement to self-isolate may place low-paid employees in significant financial difficulty and even distress;
• there is a real risk that persons who do not have access to leave entitlements might not report COVID-19 symptoms which would require them to self-isolate but might seek to attend for work out of financial need, which represents a significant risk to infection control measures;
• industry financial assistance measures announced by the Commonwealth would substantially if not wholly remove the cost of any paid pandemic leave entitlement to employers;
• the effectiveness of infection control measures has a clear relationship to the restoration of the health of the national economy; and
• the establishment of a paid pandemic leave entitlement for aged care workers is necessary to support them in their critical and essential work.
[25] At the time of the July decision, the position with respect to the COVID-19 pandemic was deteriorating significantly, particularly in Victoria. The position deteriorated further after the July decision and reached a peak in early August 2020. More recently, the position has significantly improved during a period of lockdown in Victoria. The current position (on the basis of data publicly available as at 28 October 2020) is that:
• there were 14 new cases in the last 24 hours, of which 12 were in New South Wales and none in Victoria;
• the total number of deaths is now 905 (of which 817 were in Victoria), compared to 155 when the July decision was issued;
• 841 of the deaths have been persons aged 70 or over, and 683 deaths (653 in Victoria) have been persons in Australian Government-subsidised residential aged care facilities;
• there are currently 15 active cases admitted to hospital, of which one is in intensive care;
• in Victoria, there are 3 active cases linked to aged care settings; and
• in Victoria, there have been 1,739 cases amongst workers in aged care workplaces (out of 20,342 cases in the entire state).
[26] Victoria is currently phasing out of its lockdown restrictions, with public movement no longer restricted and with re-openings in the hospitality and retail sectors subject to specified limitations.
[27] The above developments suggest that the COVID-19 pandemic is returning to a controlled status in Australia. However, these significant improvements have only occurred over approximately the last 6 weeks, and it is too early to say that it will be sustained having regard to the rapidity in which further waves of infection may spread. Further, the statistics above clearly demonstrate the vulnerability of the aged care sector to the COVID-19 pandemic. Certainly the risk we identified in the July decision in the aged care sector remains, and it is premature to say that this risk will cease to manifest itself in the future.
[28] There is no material before us evidencing the impact of the paid pandemic leave entitlement on the rate of infection in the aged care sector, the extent to which employees self-isolated once they obtained access to the entitlement, or the cost of the entitlement (if any) to employers once the various government financial assistance measures are taken into account. The most that can be said with respect to the rate of infection is that numbers began decreasing shortly after the paid pandemic leave entitlement took effect, although of course this is not demonstrative of any causal connection, with the principal driver of the improvement undoubtedly being the lockdown measures introduced in Victoria. The employer parties with members operating in the sector did not contend that the establishment of the paid pandemic leave entitlement had no positive effect on the improvement in the infection rate, and so we are prepared to proceed on the basis that the measure made some degree of beneficial contribution. We also note the absence of any employer submission quantifying or even complaining of the cost of the entitlement to date, suggesting that its cost has largely or wholly been covered by government financial support.
[29] We consider that the appropriate course is to extend the entitlement for a longer period. It was only a matter of weeks ago that the resilience of the aged care sector and its staffing model was under severe pressure, at least in Victoria. It is too early to say that the current improving situation will be sustained, and it is essential that infection control measures such as the paid pandemic leave entitlement remain in place for the time being. The date of 29 March 2021, when the Schedule X entitlements will cease operation (subject to any further extension) in line with the modified JobKeeper scheme, represents a convenient end point for the extension of the entitlement. As we emphasised in stating our provisional view in the October statement, the adoption of that date is not intended to prevent any party from making an application for the entitlement to cease at an earlier date. We will ourselves monitor the position and, if we consider that there is a basis for concluding that the continuation of the entitlement until 29 March 2021 serves no purpose, then we will call the matter back on of our own motion.
[30] We note the submissions made concerning the current expiration date of the SACWIC grant program on 30 November 2020. We do not consider that this is a reason for not proceeding with the provisional view expressed in the October statement for the following reasons:
(1) If the diminution in the rate of infection is sustained, it is likely that there will be few employees who will be eligible for the paid pandemic leave entitlement, and thus the costs of the entitlement will be minimal.
(2) In respect of the SACWIC grants program, we note the Commonwealth’s submission that “…the timeframe may be extended as needed and additional hotspots may be added, as determined by the Commonwealth for the purposes of this grant”.
(3) As the ACTU submissions point out, there are other sources of financial support for the aged care sector.
[31] We are not prepared to adopt the ACTU proposition that the entitlement be extended in duration indefinitely during the currency of the COVID-19 pandemic. It was adopted as an emergency measure for a sector affected by the pandemic in a particularly significant way, and it involves the highly unusual extension of a paid leave entitlement to casual employees. It is appropriate therefore that it operate in a time-limited way and be the subject of regular review.
[32] We confirm the provisional view expressed in the October statement. We consider that the extension of the operation of the paid pandemic leave entitlement in the Aged Care Award and in respect of residential aged care sector employees under the Nurses Award and the HPSS Award is necessary to achieve the modern awards objective in s 134(1) of the FW Act. We have taken into account the mandatory considerations in paragraphs (a)-(h) in s 134(1) in the following way. We consider that the consideration in paragraph (a) weighs in favour of the extension for the same reasons stated in paragraphs [55]-[56] of the July decision. The matters in paragraphs (b), (c), (d), (da), (e) and (g) have little or no relevance to the issue and accordingly we do not give them any weight. In respect of paragraph (f), it is clear that the paid pandemic leave entitlement represents a cost to employers but, for the reasons in paragraph [30] and [32] above, we do not consider that the cost is likely to be of significance and accordingly it weighs against the extension of the entitlement only to a minor degree. Paragraph (h) weighs in favour of the extension of the entitlement for the same reasons as are set out in paragraph [58] of the July decision.
[33] Determinations varying Schedule Y of the Aged Care Award, the Nurses Award and the HPSS Award to give effect to our decision will be issued in conjunction with this decision.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR724050>
Australian
Government
Department of Health
Deputy Secretary
Vice President Hatcher
Fair Work Commission Australia
Email: Chambers.Hatcher.VP@fwc.gov.au
Dear Vice President Hatcher
I am writing to provide further advice to letter dated 24 July 2020 around the financial support the Department of Health (the Department) is providing approved aged care providers, in response to the Fair Work Commission's Statement [2020] FWCFB 5578 of 20 October 2020 concerning the extension of paid pandemic leave in health sector awards (AM2020/13).
On 4 August 2020, the Department announced that the Support for Aged Care Workers in COVID-19 (SACWIC) grant opportunity was open for applications. The SACWIC grant is designed to support aged care providers by reimbursing out of pocket costs associated with reduced workforce mobility and infection control in COVID-19 hotspots.
Under the SACWIC grant, eligible approved providers can claim reimbursement for costs associated with paying leave for workers unable to attend work because they have been experiencing COVID-19 symptoms, have been diagnosed as COVID-19 positive, require testing or are subject to self-isolation or quarantine requirements.
By reimbursing these costs, the SAC C grant supports eligible approved providers with the costs associated with implementing the decision by the Fair Work Commission in relation to Paid Pandemic Leave for the Aged Care Award 2010, the Nurses Award 2010 and Health Professionals and Support Services Award 2020.
Providers are able to claim for upfront funding or reimbursement of costs under the conditions of the hotspot period and location as specified in Appendix A of the Grant Opportunity Guidelines. Currently, the grant is only available for eligible approved providers in the hotspots of Greater Melbourne and Mitchell Shire from 15 June 2020 to 30 November 2020. $92.4 million has been set aside to support this grant activity.
This arrangement was initially in place until 28 September 2020 but was subsequently extended to 26 October 2020 and then again to 30 November 2020.
While the eligible grant period is expected to end on 30 November 2020, the timeframe may be extended as needed and additional hotspot locations may be added, as determined by the Commonwealth for the purposes of this grant.
Providers are able to apply for the SACWIC grant until 30 June 2021.
The Grant Opportunity Guidelines for the 'GO4215 - Support for Aged Care Workers in COVID-19' grant program are published on the GrantConnect website, www.grants.gov.au.
Thank you for the opportunity to provide further information on this matter.
Yours sincerely
Michael Lye
Ageing & Aged Care
26 October 2020
3 PR721362, PR721363, PR721364
4 PR721438
5 [2020] FWCFB 4986 at [13]