By Stephanie McGrath*

On 8 April 2020 the Fair Work Commission issued a decision on pandemic leave for Health Sector Awards, inserting additional measures (known as “Schedule X”) during the COVID-19 pandemic. 

Schedule X was incorporated into the following health care sector Awards:

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

Medical Practitioners Award 2020

Nurses Award 2010

Pharmacy Industry Award 2020

Social, Community, Home Care and Disability Services Industry Award 2010

Supported Employment Services Award 2020.

What were the additional measures? 

Unpaid pandemic leave 

An employee is entitled to take up to 2 weeks’ unpaid leave (or such longer period as otherwise agreed) if: 

• the employee is required by government or medical authorities or on the advice of a medical practitioner to self-isolate; and  
• is consequently prevented from working, or is otherwise prevented from working by measures taken by government or medical authorities in response to the COVID-19 pandemic. 

The employee must give their employer notice of taking pandemic leave and the reason the employee requires the pandemic leave, as soon as practicable (which may be a time after the leave has started). 

An employee who has given their employer the proper notice must (if required by the employer) give the employer evidence that would satisfy a reasonable person that the pandemic leave is taken for one of the above reasons. 

A period of pandemic leave must have started before 29 October 2020, but may end after that date.  

Pandemic leave taken does not affect any other paid or unpaid leave entitlement of the employee and counts as service for the purposes of entitlements under the Award and the National Employment Standards. 

An employee receiving JobKeeper payments can still take unpaid pandemic leave under their Award at the same time as receiving the JobKeeper payment. 

Annual leave at half pay 

Instead of taking paid annual leave on full pay, the employee and their employer may agree to the employee taking twice as much leave on half pay. 

Any agreement must be recorded in writing and retained as an employee record. A period of leave must have started before 29 October 2020, but may end after that date.

To when has Schedule X been extended?  

Unpaid pandemic leave and annual leave at half pay has been extended under the above Awards until further order of the Fair Work Commission. 

As at the date of writing this article, any leave taken under Schedule X under these Awards, needs to start by 29 March 2021. 

What are your obligations as an employer or rights as an employee? 

The rights under Schedule X are workplace rights. Exercising or purporting to exercise a right, or the existence of such rights must not be used by an employer to take adverse action against an employee.  

An employer must not take adverse action against an employee: 

because the employee has the right under Schedule X to unpaid pandemic leave and annual leave at half pay;  

because the employee has or has not exercised a right to unpaid pandemic leave or annual leave at half pay; 

because the employee proposes or does not propose to exercise their right to unpaid pandemic leave or annual leave at half pay; or 

to prevent the employee exercising their right to unpaid pandemic leave or annual leave at half pay. 

Adverse action may include: 

• if the employer dismisses the employee; 
• if the employer injures the employee in his or her employment;  
• if the employer alters the position of the employee to the employee’s prejudice; or  
• if the employer discriminates between the employee and other employees of the employer. 

*Stephanie McGrath is a Principal Legal Advisor practising in commercial law with a focus on health, business and property across Australia.

If you require any specific information or assistance to protect your interests, please do not hesitate to contact me on 0488 00 24 24 or stephanie@twenty20legal.com.au.   

Disclaimer: The content of this article is intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive nor does it constitute legal advice. You should seek legal or other professional advice before acting or relying on any content of this article.