On 8 April 2020 the Fair Work Commission (FWC) made the decision to vary 99 modern awards as a response to the COVID-19 pandemic. This variation implemented a temporary Schedule, called Schedule X, into these affected awards. This Schedule included the entitlement to take up to 2 weeks of unpaid pandemic leave, and the ability for employees to be able to apply for twice as much annual leave at half their normal pay, if agreed by employer. Schedule X was originally due to cease at the end of 2021, however, The FWC recently announced that the provision of unpaid pandemic leave under some of the awards will be further extended until 30 June 2022. Importantly, the annual leave flexibility conditions have not been extended and ended on 31 December 2021.
As explained further below, one of the main benefits for an employee of being able to access unpaid pandemic leave through Schedule X is that their employer will be obliged to treat the period of leave as service for the purpose of accruing entitlements under the National Employment Standards (ie annual leave, personal/carer’s leave, etc). Whereas the usual rule is that any unpaid leave does not count as service for these purposes.
We explain the operation of unpaid pandemic leave below.
Unpaid pandemic leave
Any employee who is classified under one of the affected awards can access up to 2 weeks’ unpaid pandemic leave (or more, if agreed by employer) if they are restricted from working:
- as a result of being requested to self-isolate by government or medical directives, or by determination of the advice of a medical practitioner, or
- an assessment made by government or medical authorities in response to the pandemic (for example, an enforceable government direction imposing limitations to non-essential businesses).
The 2-week unpaid leave entitlement can be accessed in full, immediately to all full-time, part-time, and casual employees – it is not accrued like annual leave or sick leave.
Employees don’t need to utilise annual leave or sick leave before accessing their unpaid pandemic leave.
The leave must start before, but can finish after, the end date specified within the award. Employees who commenced their leave prior to the cessation date can still request to extend it beyond the 2-week period. However, employees are unable to commence unpaid pandemic leave after the Schedule ceases to be in effect.
Example: Unpaid Pandemic Leave
Rebecca works as a part-time Nurse Practitioner under the Nurses Award. She has been advised to self-isolate because she is a close contact to a positive COVID-19 case. Rebecca’s employer discusses the leave options available to her whilst she is away from work. As her leave commences prior to 31 June 2022, Rebecca could use the 2-week unpaid leave entitlement in full.
Unpaid pandemic leave does not affect other paid or unpaid leave entitlements and counts as service for entitlements under awards and the National Employment Standards.
Providing Evidence to Employer
Employees need to contact their employer if they wish to take unpaid pandemic leave and provide the reason for taking the leave. They will need to provide an approximate timeframe of their time off or expected return date.
The business can ask an employee to provide evidence stating why they took the leave.
An employer can’t dismiss an employee or take any adverse measures against an employee because the employee is entitled to unpaid pandemic leave. Find out more about Protections at Work.
Which awards are affected?
To see which awards still include the entitlement to unpaid pandemic leave you can refer to the following article.
As mentioned previously, not all modern awards had the Schedule X provisions extended. It is important that businesses check whether their modern awards have these provisions extended. The following resource sets out the awards where Schedule X ceases to operate and the indicative date of which the Schedule ended – please refer to the list of awards where unpaid pandemic leave no longer applies.
Please note: Schedule X in the Mobile Crane Award has been restored and starts again from 1 January 2022 until 30 June 2022.
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The information provided in these blog articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact HR Connect for advice.