| [2022] FWCFB 130 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.158—Application to vary or revoke a modern award
COVID-19 Award Flexibility – applications to vary Schedule X
(AM2022/22, AM2022/23)
VICE PRESIDENT HATCHER |
SYDNEY, 15 JULY 2022 |
Applications by Australian Municipal, Administrative, Clerical and Services Union and Health Services Union to extend operation of Schedule X in various modern awards.
Introduction and background
[1] On 29 June 2022 the Health Services Union (HSU) and the Australian Municipal, Administrative, Clerical and Services Union (ASU) lodged applications, pursuant to s 158 of the Fair Work Act 2009 (Cth) (FW Act) to vary a number of modern awards to extend the operation of the unpaid pandemic leave provisions in Schedule X – Additional Measures During the COVID-19 Pandemic (Schedule X) until 31 December 2022.
[2] Schedule X was first inserted into 99 modern awards on 8 April 2020, pursuant to a decision 1 of a Full Bench of the Commission (April 2020 decision), as a short-term ameliorative measure in response to the initial employment impact of the COVID-19 pandemic. Schedule X, in its original form, dealt with two matters: first, unpaid pandemic leave and, second, taking paid annual leave at half pay. In respect of the former matter, the function of the introduction of an entitlement to take unpaid pandemic leave was to address what was described as a “regulatory gap” in respect of employees who, under public health requirements, were required to self-isolate (and thus not attend work) for periods of 14 days because they had been exposed to someone infected with COVID-19 but had not themselves tested positive or displayed any symptoms of infection. In that circumstance, the employee would not be able to access personal/carer’s leave by right because they were not sick. The purpose of the measure was to support compliance with self-isolation measures, maintain employees in their employment and provide protection to employees from dismissal if they were absent from work.2
[3] The Schedule X provisions initially operated from 8 April 2020 until 30 June 2020 unless extended. The operation of Schedule X was subsequently extended in a number of modern awards throughout 2020 and 2021 pursuant to various decisions of the Commission. Most recently, in a decision 3 issued on 20 December 2021 (December 2021 decision), the Commission determined to extend the operation of parts of Schedule X in a number of modern awards, including the awards that are the subject of these applications, until 30 June 2022, but only in respect of unpaid pandemic leave. In so deciding, the Commission said:
“[8] I consider that the applications to extend the unpaid pandemic leave provisions of Schedule X in the 73 awards, which are unopposed, should be granted. The original rationale for the establishment of these provisions in the April 2020 Decision was that it was necessary to address a ‘regulatory gap’ whereby employees who are required to self-isolate because they have been exposed to someone infected with COVID-19 but have not yet tested positive to COVID-19, have not displayed any symptoms and are not unfit for work because of personal illness, and are consequently prevented from working, may not be able to access paid personal leave. That rationale retains its relevance in the current circumstances. As States and Territories, to different degrees and according to different timetables, remove various COVID19-related restrictions on activities and ‘open up’, it is likely that the number of COVID-19 infections will increase significantly. This is already occurring in New South Wales. In that context, the demand for COVID-19 testing will undoubtedly increase, and community adherence to required or recommended self-isolation measures will be of the utmost importance.”
(footnote omitted)
[4] On 17 June 2022 the Commission issued a decision 4 in relation to the expiry of Schedule X in a number of modern awards on 30 June 2022. Interested parties were invited to file variation applications before 30 June 2022 should they seek the operation of Schedule X to be extended beyond this date in specific modern awards. The decision indicated that if no such applications were received, the modern awards that at that time had operative Schedule X provisions would be varied to delete those provisions after they expired on 30 June 2022.5
The HSU application
[5] The HSU’s application 6 sought to vary the following five modern awards to extend the operation of the unpaid pandemic leave provisions of Schedule X:
• Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020;
• Aged Care Award 2010;
• Ambulance and Patient Transport Industry Award 2020;
• Health Professionals and Support Services Award 2020; and
• Supported Employment Services Award 2020.
[6] The substantive grounds for the HSU’s application were:
“1. The entitlement to unpaid pandemic leave was first introduced in the modern award system by the Full Bench in April 2020, via the creation of ‘Schedule X’ in the majority of modern awards.
2. Throughout 2020 and 2021, the operation of Schedule X was extended in the modern awards the subject of this application.
3. The most recent extension was approved by the Commission on 20 December 2021 and the terms of Schedule X as it appears in the awards the subject of this application are currently such that the entitlement will cease to operate after 30 June 2022.
4. The original rationale for the establishment of the unpaid pandemic leave provisions of Schedule X was that it was necessary to address a ‘regulatory gap’ whereby employees who are required to self-isolate because they have been exposed to someone infected with COVID-19 but have not yet tested positive to COVID-19, have not displayed any symptoms and are not unfit for work because of personal illness, and are consequently prevented from working, may not be able to access paid personal leave. The establishment of the Schedule X provisions (and the subsequent extensions to its operations) have been considered necessary by the Commission in order to achieve the modern awards objective.
5. That rationale retains i[t]s relevance in current circumstances.
6. The number of active COVID-19 infections nationally is 231,455. This is significantly higher than the numbers seen both when Schedule X was first introduced and when it was last extended in December 2021.
7. COVID-19 variants continue to emerge, the implications of which cannot be fully predicted.
8. Whilst States and Territories have removed, to different degrees, self-isolation requirements for close contacts of COVID-19 cases, positive cases are still required to isolate whether or not a COVID-19 infection results in symptoms or a person becoming unfit for work because of personal illness.
9. In the context of ongoing high case numbers, community adherence to the remaining required or recommended self-isolation measures remain[s] of the utmost importance.
10. On the basis of the above, an entitlement to unpaid pandemic leave will remain necessary in Schedule X of the awards the subject of this application beyond 30 June 2022 to ensure the modern awards objective is met. Whilst it remains unknown for how long it will remain necessary in the relevant sense, the applicant seeks an extension until 31 December 2022 noting that the date for the expiry of the entitlement can be revised should the need arise.”
(footnotes omitted)
[7] The Presiding Member issued directions on 30 June 2022 requiring interested parties to file evidence and submissions in relation to the HSU’s application by 5:00 pm (AEST) on 7 July 2022.
[8] On 4 July 2022 the United Workers Union (UWU) advised the Commission that it supported the HSU’s application, but that it did not propose to make formal submissions or file evidence at this time. 7
[9] On 7 July 2022 the HSU advised the Commission that it did not propose to file any evidence or submissions pursuant to the directions, and instead relied on the grounds set out in its application. 8
[10] No other submissions were received, either in support of or opposition to the HSU’s application, pursuant to the directions. 9
The ASU application
[11] The ASU’s application 10 originally sought to vary the following 11 modern awards to extend the operation of Schedule X:
• Airline Operations – Ground Staff Award 2020;
• Business Equipment Award 2020;
• Contract Call Centres Award 2020;
• Electrical Power Industry Award 2020;
• Labour Market Assistance Industry Award 2020;
• Legal Services Award 2020;
• Local Government Industry Award 2020;
• Professional Employees Award 2020;
• Social, Community, Home Care and Disability Services Industry Award 2010;
• Supported Employment Services Industry Award 2020; and
• Water Industry Award 2020.
[12] The substantive grounds for the ASU’s application (omitting ground 1, which referred to and reproduced paragraph [8] of the December 2021 decision) were:
“2. While many COVID-19 related public health measures have been lifted, the COVID-19 pandemic is still in progress. The rationale of the original April 2020 Decision continues to apply.
3. Each State and Territory continues to have declarations and/or orders in place that impose restrictions on employees who test positive to COVID-19, and, in some cases, employees who are exposed to COVID-19. Close Contacts are directed in each state to avoid ‘high risk settings’ including health care settings, aged care facilities, residential care facilities (including mental health and disability care facilities) and correctional facilities or people at risk of severe illness from COVID-19.
4. The granting of the application to extend the unpaid pandemic leave entitlement until 31 December 2022 does not prohibit the Commission from calling the matter on prior to that date (either on application or on its own initiative) to consider a different sunset date.”
[13] The Presiding Member issued directions on 30 June 2022 requiring interested parties to file evidence and submissions in relation to the ASU’s application by 5:00 pm (AEST) on Thursday 7 July 2022.
[14] On 7 July 2022 the ASU advised the Commission that it relied on the grounds set out in its application and did not intend to file any evidence or submissions. 11 On the same day, the HSU advised the Commission that it supported the ASU’s application as it related to the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award), and likewise did not intend to file evidence or submissions in relation to the ASU’s application.12 On 8 July 2022 the United Workers Union (UWU) advised the Commission that it supported the ASU’s application as it related to the SCHADS Award, the Supported Employment Services Industry Award 2020 (SES Award) and the Water Industry Award 2020, but would not be filing submissions or evidence in relation to these three awards.13
[15] No submissions were otherwise received, either in support of or opposition to the ASU’s application, pursuant to the directions.
[16] On 12 July 2022 the ASU advised that it no longer intended to press its application in relation to the Electrical Power Industry Award 2020. 14
Consideration
[17] There have been significant changes in the circumstances pertaining to the COVID-19 pandemic which have occurred since the April 2020 decision, and also since the December 2021 decision. Since the former decision, the main developments have been the mass vaccination of the Australian adult population, which has reduced the health risks for vaccinated persons who have been infected, and the emergence of more infectious but what appear to be less dangerous variants of the virus. Since the latter decision, there has been:
• the removal of most restrictions on movement;
• an abandonment of contact tracing of infected persons;
• a relaxation of vaccine mandate requirements;
• the cessation of government-funded paid pandemic leave entitlements in most States and Territories;
• the introduction of rapid antigen testing, which has become the primary method of testing; and
• the modification of self-isolation requirements.
[18] The last two of these developments in combination have, to a significant degree, vitiated the original rationale for the introduction of unpaid pandemic leave. Rapid antigen testing means that persons who have come into close contact with an infected person can quickly obtain a reasonably reliable COVID-19 test result without having to undergo the delay previously associated with PCR testing. Self-isolation requirements for close contacts have been significantly relaxed in most States and Territories (see the table in Attachment 1 for a summary of the current requirements), and in no case is self-isolation for non-symptomatic persons required for more than 7 days. This means that the requirement for persons to self-isolate (and accordingly absent themselves from work) has been considerably diminished or even removed in many contexts compared to when the April 2020 decision was issued, although stricter requirements remain in connection with health care and other care and high-risk sectors.
[19] There are also countervailing developments, however. The rate of infection is currently very high, with an estimated 316,789 current active cases, which means that the number of close contacts will be correspondingly high. There is also a significant rate of death, concentrated in the elderly, with more fatalities in 2022 so far than in 2020 and 2021 combined. 15
[20] The difficulty in considering the applications made by the HSU and the ASU is that we have no evidence at all concerning the extent to which employees are utilising unpaid pandemic leave. The grounds of the applications do not even assert that these provisions are being utilised to any significant degree or indeed at all. That makes it impossible to assess whether the Schedule X provisions are continuing to serve any useful purpose. We note that, in respect of the large majority of awards, no application has been made for the extension of unpaid pandemic leave entitlements, and the inference which might most reasonably be drawn from this is that such entitlements are not perceived as being of continuing necessity or value. A similar inference might be drawn from the apparent indifference of employer organisations to the applications before us.
[21] As earlier noted, government-funded paid pandemic leave entitlements have largely come to an end although, at the time of writing this decision, this was the subject of potential reconsideration. This may mean that there is a greater need for employees to access unpaid pandemic leave in order to cover periods of self-isolation, but again this can only be a matter of speculation rather than informed prediction.
[22] The approach we intend to take, in the circumstances described and for more abundant caution, is to extend the operation of the Schedule X unpaid pandemic leave provisions in the most at-risk and vulnerable sectors, namely the health care, aged care and other care sectors, until 31 December 2022. These sectors are encompassed by the five awards the subject of the HSU application and, additionally, the SCHADS Award. In respect of the other awards the subject of the ASU application (apart from the SES Award, which is also the subject of the HSU application), we cannot identify any basis to distinguish the industries/occupations covered by those awards from the other awards in which Schedule X has already ceased operation. Therefore, the ASU’s application will not be granted in respect of those awards.
[23] We are satisfied that the variations we will make to the identified awards are necessary to meet the modern awards objective in s 134(1) of the FW Act, taking into account the matters specified in that provision.
[24] Determinations to give effect to this decision will be published concurrently with the decision.
[25] We direct that if any party seeks the further extension of the unpaid pandemic leave provisions in any of the six awards in which they will continue to operate as a result of this decision, an application for this must be filed by 30 November 2022. We indicate that if any such application is made, it should be supported by evidence concerning the extent of utilisation and overall utility of unpaid pandemic leave in the sectors concerned.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR743832>
Note regarding Commonwealth pandemic leave payments:
• The COVID-19 Disaster Payment for workers adversely affected by a state public health order is no longer available (COVID-19 Disaster Payment - Services Australia)
• The Pandemic Leave Disaster Payment replaced similar payments for each state/territory provided by the Commonwealth on 18 January 2022. It was for where people had to isolate/care for someone who was isolating and could not earn an income. It is now no longer available, having ended on 30 June 2022 (Pandemic Leave Disaster Payment - Services Australia)
State / Territory |
Instrument / guidance |
Relevant isolation provisions |
Pandemic leave payments |
Australian Capital Territory |
Public Health (Diagnosed People and Household Contacts) Emergency Direction 2022 (No 7) |
Household contacts of a diagnosed person A household contact (person who is a member of the same household as a diagnosed person) must: • Quarantine in accordance with s 16; or
Quarantine under s 16 involves isolating at a designated premises from the time the diagnosed person tested positive until they are declared no longer to be a diagnosed person or 11:59pm on the seventh day after the diagnosed person’s positive test (ss 16 and 17). Risk Mitigation Requirements for Household Contacts for a period of 7 days from the positive test in the household. Household contacts can do a number of things if they are symptom-free, including attend work/study if unable to do so from home (Attachment B). Before attending work, a household contact must: • notify their employer and obtain agreement before attending work (including if they work in a high risk setting like a hospital, aged care facility etc);
Recovered cases People who received clearance from self-isolation with COVID-19 within 28 days (recovered case) do not have to comply with the requirements of the direction unless directed to do so (s 21). Relevant guidance for people who have been exposed to COVID-19 but are not household contacts ACT government guidance states that people who spent a long time with a positive COVID-19 case are recommended to follow the requirements for household contacts but this is not required under the directions. The guidance is available here: Information for people exposed to COVID-19 - COVID-19 (act.gov.au) |
ACT COVID-19 Hardship Payment ceased on 30 June 2022 (COVID-19 economic support for business - Business Hub (act.gov.au)) |
New South Wales |
Public Health (COVID-19 Self-Isolation) Order (No 2) 2022 Relevant explanatory content: |
Household and close contacts of positive COVID-19 cases A household or close contact (as notified by an authorised contact tracer) of a positive case must (s 9): • comply with clauses 11 or 12 which require them to isolate for 7 days and not leave their residence/place of isolation except as permitted (eg for an emergency); or
unless the person has already been diagnosed with COVID-19 and has completed the required isolation period and it is no more than 4 weeks after the person’s isolation ended (s 10). The Guidelines provide that household/close contacts who do not have symptoms do not have to isolate but are required to follow a range of other measures, including: • Notifying their employer that they are a household/close contact;
People exposed to COVID-19 but not a household/close contact Pursuant to the Information for people exposed to COVID-19 | NSW Government people who spent a long time with a positive COVID-19 case are recommended to follow the steps for household/close contacts, although this is not required in the directions. |
The NSW Test and Isolate support payment for NSW workers who need to isolate and lost income while waiting for a test were eligible for one payment every 30 days. This payment ceased on 31 January 2022. |
Northern Territory |
Post-emergency COVID-19 Directions No. 5 of 22: infected persons and close contacts Relevant for definitions: Post-emergency COVID-19 Directions No. 4 of 2022: face masks |
Close contacts A close contact is someone who (direction 22): • resides / stayed overnight with an infected person; or
but not a former infected person whose iso ended in the last 12 weeks (direction 23). Note, however, that the NT government’s coronavirus website says that this exception period has been shortened to 28 days, though there appears not to be an official direction to this effect yet. Close contacts must (direction 24): • get tested for COVID-19 o within 3 days of contact
• “regularly check for symptoms” for 7 days after contact (direction 25)
o return a negative RAT before entering the place for the first time each day;
• wear a face mask outside their home (direction 30), with limited exceptions (direction 31)
|
NT government sources refer to the Commonwealth payment which is no longer available. It does not appear that the NT currently has its own pandemic leave payment available for workers. |
Queensland |
Management of Diagnosed Cases of COVID-19 and Close Contacts Direction (No. 2) |
Close contacts For 7 full days from the date the close contact was in contact with the COVID positive person, a close contact must: • wear a face mask outside the home including outdoors when unable to physically distance (s 18);
o Close contacts stay home if they have symptoms;
Cleared cases of COVID-19 A person who becomes a close contact or diagnosed person within 12 weeks of ending isolation does not have to comply with the requirements of the Direction, but close contacts should follow the Guidelines for Close Contacts (s 22). |
Queensland government sources refer to the Commonwealth payment which is no longer available. It does not appear that Qld currently has its own pandemic leave payment available for workers. |
South Australia |
South Australian Public Health (COVID-19 Directions) Notice 2022 |
Close contacts Close contact means a household member or intimate partner of a COVID-19 case, a person who spent more than 4 hours in contact with the person indoors without masks during the COVID-19 case’s infectious period, or a person who has been at an exposure site during the exposure period for that site (s 3). A close contact must comply with Schedule 1 clauses 2, 3 and 4 (s 4(2)) unless there is a different CHO requirement for the industry/workplace and the CEO or PCBU approves its application to the person (s 4(3)) Schedule 1 requires close contacts to: • wear a surgical mask when they leave their place of residence for 7 days from exposure date (Schedule 1, s 2(1));
|
The South Australian government sources refer to the Commonwealth payment which is no longer available. It does not appear that SA currently has its own pandemic leave payment available for workers. |
Tasmania |
Management of Close Contacts direction Advice for contacts | Coronavirus disease (COVID-19) Leaving isolation after having COVID-19 | Coronavirus disease (COVID-19) |
Close contacts (per Management of Close Contacts Direction) A close contact is a person who lives with a positive case and resided/spent the night there within the 48-hour period before the case was identified, or has spent more than 4 hours in total with a case in their/the case’s primary residence or the primary residence of another person in the 48-hour period before the case was identified, or they have been notified by the Director of Public Health that they are a close contact (s 2(a)). A close contact must: • Undergo a COVID-19 test as soon as possible and on the 6th day after becoming aware they are a close contact (s 3(a)(i));
(Note that the requirements for close contacts in the guidance are more extensive than what is in the relevant public health direction: Advice for contacts | Coronavirus disease (COVID-19)) Re-exposure exemptions If a person becomes a close contact or develops COVID-19 symptoms within 4 weeks from release from isolation, they do not need follow the close contact rules or get tested for COVID-19 (unless immunocompromised or at risk of severe disease): Leaving isolation after having COVID-19 | Coronavirus disease (COVID-19). However, the Management of Close Contacts direction still states this period is 12 weeks (s 4(a)(ii)). |
Tasmanian Government Pandemic Isolation Assistance Grant of $750 is available the first time a person is a positive case themselves, and multiple times as a carer (but only once in a 60-day period). Positive cases and close contacts payments | Coronavirus disease (COVID-19) |
Victoria |
Close contacts A “close contact” is someone who has spent more than 4 hours in an indoor space with a diagnosed person or probable case during their infectious period, or who has been notified by the Health Department that they are a close contact (s 17(1)). A close contact must self-quarantine for 7 days from the positive PCR test/RAT of the person they were in contact with or until they are given notice that they can stop self-quarantine under s 21 (ss 18, 20 and 21), unless: • The close contact conducts surveillance testing on themselves (undertake a RAT every 24 hours and only receives negative results, wear a face covering in indoor spaces outside of their residence, they do not visit a hospital or care facility unless they are permitted to do so), and they notify their employer that they are a close contact if they will be attending work (s 22); or
The Chief Health Officer, Deputy Chief Health Officer or a Director/Medical Lead of a designated Local Public Health Unit may exempt diagnosed persons and probable cases from the self-isolation requirement in some circumstances (s 31) Healthcare workers who are close contacts are not required to comply with the isolation requirements if they are granted an exemption by the Chief Health Officer, Deputy Chief Health Officer or a Director/Medical Lead of a designated Local Public Health Unit in some circumstances (s 33) Recent confirmed cases Do not have to comply with the requirements of the Order. A “recent confirmed case” is someone who is currently within their infectious period and has begun but not yet completed their self-isolated, or whose period of self-isolation ended within the previous 4 weeks. |
Victorian government no longer appears to have pandemic leave payments available for workers who cannot attend work due to isolation | |
Western Australia |
Close contacts Close contacts are members of the same household or an intimate partner of a diagnosed person and had contact within them during their infectious period, or spent more than 4 hours in a residential setting without a mask with a person during their infectious period or are informed that they are a close contact (ss 30 and 31) Close contacts must comply with the requirements in Schedule 2 (s 9) which are: • They must isolate for 7 days after the diagnosed person took the positive test provided that on day 7 they take a RAT (or a PCR on day 6 or7) and it produces a negative result (Schedule 2, s 1);
Close contacts who do not have symptoms can leave isolation for any reason within the 7 day period if they obtain a negative RAT result (Schedule 4, s 3(d) Close contacts must not enter a high risk setting during for 7 days from the person with whom they were in contact with tests positive (if the person is a member of the household) or in any other case, the time the person last had contact with the diagnosed person during their infectious period, unless an exemption applies including: • if they are an emergency services worker and entering the setting for the purposes of responding to an emergency (s13(d));
o monitors for symptoms during exclusion period;
Recent cases Recent cases are people who have completed their isolation period within the previous 4 weeks. Recent cases are not required to comply with the directions. |
WA has a Test Isolation Payment scheme of $320 for workers who need to isolate to await a PCR result, unable to WFH and cannot access paid leave. COVID-19 coronavirus: Test Isolation Payment Scheme (www.wa.gov.au) |
2 Ibid at [67]-[70], [74]; see also [2020] FWCFB 1760 at [45]-[55]
5 Ibid at [9]
6 HSU application to vary 5 modern awards
9 On 11 July 2022, four days after the deadline in the directions, the Victorian Ambulance Union Incorporated advised that it supported the HSU application but did not intend to file evidence or submissions.
10 ASU application to vary 11 modern awards
15 COVID-19 Mortality in Australia: Deaths registered until 31 May 2022 - Australian Bureau of Statistics (abs.gov.au)