In April of 2020, the Full Bench of the Fair Work Commission issued a decision varying 99 modern awards by inserting a new Schedule. The Schedule, titled Schedule X, provided employers and their employees with new flexibilities to help the response to the Covid-19 pandemic. Now, after 2 extensions of the original expiry date of the Schedule, the provisions for unpaid pandemic leave have been extended until 30 June 2022.
Schedule X Additional measures during the COVID-19 pandemic originally provided two key measures:
- an entitlement to unpaid pandemic leave; and
- the flexibility to take twice as much annual leave at half the pay
These Schedules were set to expire on 30 June 2020. However, due to the prolonging of the COVID-19 pandemic, their operation in most modern awards was extended by the Commission until 31 December 2021.
On 10 December 2021, the Commission notified stakeholders that the Schedule would soon expire but that it could be extended on application. Consequently, the Commission received a number of applications seeking to extend (only in part) the operation of the Schedule in 72 of the 99 modern awards until 30 June 2022. Specifically, the applications sought an extension of terms in respect of unpaid pandemic leave. This was approved on 20 December 2021.
Notably, the entitlement to take annual leave at half pay under Schedule X was not extended and therefore expired on 31 December 2021.
To check whether your modern award contains current unpaid pandemic leave provisions, see here.
The current entitlement under Schedule X of the relevant modern awards is for up to 2 weeks of unpaid pandemic leave (or more, where agreed with the employer) where the employee is prevented from working:
- as a result of being required to self-isolate by government or medical authorities, or acting on the advice of a medical practitioner, or
- by measures taken by government or medical authorities in response to the pandemic (for example, an enforceable government direction restricting non-essential businesses).
In seeking to take unpaid pandemic leave, an employee must notify their employer of their intention, including the reason for taking the leave, as soon as practicable. This may even occur after the leave has started where circumstances provide.
Under Schedule X, an employer may request evidence from an employee to support their request for unpaid pandemic leave. The evidence provided must satisfy the reasonable person test.
Where a request for unpaid pandemic leave is made by an employee, Schedule X prohibits an employer from dismissing or taking adverse action against that employee for exercising that entitlement.
Some additional key points in relation to the unpaid pandemic leave include:
- It is available to all applicable employees immediately and does not need to be accrued or taken on a pro rata basis.
- Paid leave accruals don't need to be exhausted before it can be accessed.
- The leave needs to start before the award provisions expire but can run after the date of expiry.
- Time spent on unpaid pandemic leave counts as service for the purposes of accruals.
Schedule X is silent about whether the 2-week unpaid period may be taken in non-consecutive periods or it must be taken in one consecutive period. However, we are of the view that the 2 weeks may be taken in non-consecutive periods providing that the requirements of the Schedule are satisfied on each occasion.
If an employee asks you about taking unpaid pandemic leave, first, we suggest you refer directly to their applicable modern award to ensure that the entitlement applies to them. If it does not, you should explain the reason why you cannot approve their request and then you might refer them to any other form of leave to which they are entitled - in the case of COVID-19, this might be personal/carer's leave. Alternatively, ensure that you remain compliant with the terms of Schedule X to avoid possible penalties for breach of the modern award or an adverse action claim by the employee.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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