Update from the Fair Work Commission on Unpaid Pandemic Leave
As the Covid-19 pandemic continues to persist, the question of unpaid leave has posed a challenge for many employers and employees.
While unpaid pandemic leave was available to many workers beginning in 2020, the ability for workers to access this type of leave ended on 30 June 2022.
The Fair Work Commission (FWC) has now decided to reinstate unpaid pandemic leave for employees covered under a limited number of Modern Awards.
This means that if an employee falls under one of these Awards and meet certain eligibility requirements, they are now entitled to two-weeks of unpaid pandemic leave.
So, who is covered under these changes and what leave can be taken?
What Awards are affected?
While unpaid pandemic leave had previously been available to workers who fell under 99 different Modern Awards, the FWC’s recent decision to reinstate unpaid pandemic leave only applies to those covered under a small number of Awards.
The decision applies ONLY to the following Modern Awards:
- Aboriginal and Torres Strait Islander Health Services Award
- Aged Care Award
- Ambulance and Patient
- Transport Award
- Health Professionals and
- Support Services Award
- Social, Community, Home Care and Disability Services Award
- Supported Employment Services Award
Workers covered under other Awards will not be eligible to access unpaid pandemic leave.
Unfair dismissal claims and minimum employment periods
Despite the common usage of the term ‘probation, this concept is not actually addressed within the Fair Work Act and (as has been explained) probation often align with minimum employment period specified by the Fair Work Act. To reiterate, this period is 6 months, or 12 months for small businesses.
Once an employee’s minimum employment period has been completed, they are then able to lodge an unfair dismissal claim if they believe they have been dismissed unfairly – regardless of the length of any probation outlined in their employment agreement.
A case brought to the Fair Work Commission highlights the importance to your understanding of the differences between (and details of) probation and minimum employment periods.
In Werner v St Michael’s Association  FWC 2896, an employer extended a worker’s probation for an additional 3.5 months beyond employment agreement probation of 6-months.
On the final day of the probation, the worker’s employment was terminated – despite ain job performance during the probation extension.
While the employer believed the extended probation protected them from an unfair dismissal claim, this was not the case as the worker had been employed for more than 6-months.
Following an unfair dismissal claim from the worker in question, the Fair Work Commission ruled the worker had been unfairly dismissed and they were subsequently awarded $8,788.64 in compensation from the employer.
What leave can be taken?
Workers whose employment falls under the Modern Awards, and who are employed on a casual, part time or full-time basis can access up to two weeks of unpaid pandemic leave.
Employers are not required to accrue this leave or to use all their paid leave before accessing it.
This leave is available to eligible employees immediately and these arrangements will conclude on 31 December 2022.
What notice or evidence is needed?
Before taking unpaid pandemic leave, an employee must let their employer know that they are doing so, and their reason for taking the leave (e.g. due to self-isolation).
This should be done by employees as soon as is possible, which may be after the period of leave has already commenced.
An employer may ask for evidence of why the leave is being taken.
Akyra’s key takeaways
- The Fair Work Commission has chosen to reinstate (in a limited capacity) workers’ right to take unpaid pandemic leave
- This decision applies to workers who fall under a limited number of Modern Awards
- Eligible workers can access up to two weeks of unpaid pandemic leave
- Employees must let their employer know when they are taking unpaid pandemic leave and why
- Employers can ask for evidence of why this leave is being taken
NEED MORE INFORMATION?
Akyra can help your business to assist and support all your questions and concerns related to personal leave, including unpaid pandemic leave. Please contact Akyra on 07 3204 8830 or book a free 30-minute consultation for an obligation-free conversation.
Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not intended to be legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.
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