[2021] FWCFB 1622
The attached document replaces the document previously issued with the above code on 26 March 2021.
By amending the reference in footnote 2 to [2021] FWCFB 1621
Modern Awards, Economics and Research Section
On behalf of the Associate to Vice President Hatcher
Dated 26 March 2021
| [2021] FWCFB 1622 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.158—Application to vary or revoke a modern award
Health sector awards—Pandemic Leave
(AM2021/15 and Ors)
VICE PRESIDENT HATCHER |
SYDNEY, 26 MARCH 2021 |
Health sector awards—Pandemic Leave —Schedule X—Additional measures during the COVID-19 pandemic—Schedule Y—Industry Specific Measures During the COVID-19 Pandemic—schedules due to cease operation.
[1] On 24 March 2021, we issued a decision 1 in which we expressed the provisional view that:
(1) the operation of the provisions in Schedule X—Additional measures during the COVID-19 pandemic in the following nine awards (health awards), which provide for an entitlement to unpaid pandemic leave and a facility for employees to take twice the amount of annual leave at half pay, should be extended until 31 December 2021:
• Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020;
• Aged Care Award 2010 (Aged Care Award);
• Ambulance and Patient Transport Industry Award 2020;
• Health Professionals and Support Services Award 2020 (HPSS Award);
• Medical Practitioners Award 2020;
• Nurses Award 2010 (Nurses Award);
• Pharmacy Industry Award 2020;
• Social, Community, Home Care and Disability Services Industry Award 2010; and
• Supported Employment Services Award 2020.
(2) the operation of the provisions of Schedule Y—Industry Specific Measures During the COVID-19 Pandemic in the Aged Care Award, the HPSS Award and the Nurses Award, which provide employees working in the aged care sector with an entitlement to paid pandemic leave, should not be extended beyond 29 March 2021.
[2] In the decision, we invited interested parties to file written submissions in response to the provisional view above by 5pm on 25 March 2021 and indicated that, if any submissions were filed opposing our provisional view, we would conduct a hearing at 4pm on 26 March 2021.
[3] No submissions were received opposing our provisional view and, accordingly, the hearing at 4pm today is not necessary and will not occur. The Australian Council of Trade Unions submitted:
“The applications recently lodged with the Commission to extend the duration of entitlements contained Schedules X and Y in modern awards (save for that lodged by the Victorian Ambulance Union) were prepared jointly by ourselves and our affiliates. The grounds stated in applications and the draft determinations annexed thereto were expressed to relate to the extension of the duration of existing entitlements to unpaid pandemic leave and paid pandemic leave (where relevant), while allowing the entitlement to take annual leave at half pay to sunset on 29 March 2021.
It is not clear to us whether the provisional views concerning Schedule X stated in the decisions of the Commission yesterday in [2021] FWCFB 1601 and [2021] FWCFB 1596 relate to only the unpaid leave entitlement in that Schedule or the entirety of that Schedule. Irrespective of this, it is not our intention to contest the adoption of the provisional view in relation to Schedule X.
In relation to Schedule Y, the Commission’s provisional view is that:
The emergency circumstance which caused us to award the paid pandemic leave entitlement for aged care employees do not appear to have pertained for some time now. It is therefore our provisional view that Schedule Y should not be further extended.
Whilst we disagree with such an outcome on the merits, we note that we and our affiliates conducted a contested claim for the insertion of Schedule Y entitlements in the Social, Community, Home Care and Disability Services Industry Award and the Ambulance and Patient Transport Industry Award which was the subject of a decision in [2020] FWCFB 7079. In that matter, we sought to persuade the Full Bench that an entitlement to paid pandemic leave could be justified in an accepted high risk setting even where the level of COVID-19 infection in that sector was not at a high level at the time the claim was determined, but had been in the past. We saw enormous value in having such an entitlement in place as a preventative measure, however the claim was rejected. The provisional view suggests that the Full Bench will maintain the approach which led to that claim being dismissed. In those circumstances we do not see any utility in contesting the provisional view on the information presently available to us. We may, nonetheless, review our position should circumstances change or further material become available after 29 March.”
[4] The Australian Chamber of Commerce and Industry, Australian Business Industrial, the NSW Business Chamber Ltd, Aged & Community Services Australia and Leading Aged Services Australia filed a joint submission in which they supported the provisional view concerning Schedule Y and did not oppose the provisional view concerning Schedule X. The other submissions received, which were from the Pharmacy Guild of Australia and on behalf of Mr Joshua Gomperts, did not oppose the provisional view.
Schedule X
[5] We confirm our provisional view that the operation of the Schedule X provisions in the health awards should be extended until 31 December 2021. Earlier today, a separately-constituted Full Bench published a decision 2 in which it determined to extend the operation of equivalent Schedule X provisions in 57 awards until 31 December 2021 and gave its reasons for doing so. We adopt the reasons given in that decision as our own for the purpose of this decision.
Schedule Y
[6] We also confirm our provisional view that the operation of the Schedule Y provisions in the Aged Care Award, the HPSS Award and the Nurses Award should not be extended beyond 29 March 2021. As we stated in our decision of 24 March 2021, the Schedule Y entitlements to paid pandemic leave for aged care sector employees were introduced to meet the emergency circumstances of a COVID-19 outbreak in Victoria which was centred in aged care facilities. In paragraph [44] of our decision of 27 July 2020 3 in which we determined to establish the Schedule Y entitlements, we summarised the position pertaining as at 26 July 2020 as follows:
“• there were 475 new cases reported in the last 24 hours, of which 459 were in Victoria and 14 were in new South Wales;
• the total number of deaths has increased to 155, 32 more than when the 22 July statement was issued;
• 132 of the total deaths have been persons aged 70 or over, and 62 of the deaths have been person in Australian Government-subsidised residential aged care facilities;
• there are currently 241 active cases in Australia admitted to hospital, of which 46 are in intensive care; and
• in Victoria, there are 560 active cases linked to aged care settings, of which about half are residents and about half are staff, and of 22 “key outbreaks” identified by the Victorian Government, 10 are at residential aged care facilities.”
[7] In paragraph [25] of our decision of 29 October 2020, 4 in which we extended the operation of the Schedule Y provisions in the three awards from 29 October 2020 to 29 March 2021, we identified that there had been a significant improvement in the position after a period of lockdown in Victoria, to the extent that there had been no new cases in Victoria in the previous 24 hours. However, the effect of the outbreak in Victoria by that time was that total deaths had increased to 905, of which 817 had been in Victoria, and in respect of the aged care sector we said:
“• 841 of the deaths have been persons aged 70 or over, and 683 deaths (653 in Victoria) have been persons in Australian Government-subsidised residential aged care facilities;
…
• in Victoria, there are 3 active cases linked to aged care settings; and
• in Victoria, there have been 1,739 cases amongst workers in aged care workplaces (out of 20,342 cases in the entire state).”
[8] We went on to say in our 29 October 2020 decision:
“[27] The above developments suggest that the COVID-19 pandemic is returning to a controlled status in Australia. However, these significant improvements have only occurred over approximately the last 6 weeks, and it is too early to say that it will be sustained having regard to the rapidity in which further waves of infection may spread. Further, the statistics above clearly demonstrate the vulnerability of the aged care sector to the COVID-19 pandemic. Certainly the risk we identified in the July decision in the aged care sector remains, and it is premature to say that this risk will cease to manifest itself in the future.”
[9] The current position (as at today’s date) reported by the Commonwealth Department of Health may be summarised as follows:
• there are an estimated 150 active cases in Australia of which 57 are in NSW, 67 in Queensland and none in Victoria, and 71 of these are hospitalised;
• the last fatality in Australia was reported on 29 December 2020, and the last two fatalities before that were reported on 30 November 2020 and 28 October 2020;
• there have been no locally acquired cases in the last 7 days; 5
• there are no active cases amongst people living in Australian Government-subsidised residential aged care facilities nor amongst people receiving Australian Government-subsidised in-home care;
• there are no active cases amongst staff employed in Australian Government-subsidised residential aged care facilities; and
• the last new active case amongst persons living in Australian Government-subsidised residential aged care facilities was on 26 September 2020, and there have been no active cases since 28 October 2020.
[10] This data allows us to conclude, first, that the improvement in the situation which we identified in our 29 October 2020 decision has continued and been sustained and, second, no elevated risk of infection in the aged care sector has manifested itself over the last five months. Accordingly, we do not consider that a proper basis exists for the continuation of the Schedule Y provisions in the circumstances described.
[11] Determinations varying the health awards to extend the operation of the Schedule X provisions until 31 December 2021, and varying the Aged Care Award, the HPSS Award and the Nurses Award to delete the Schedule Y provisions, will be published shortly.
[12] As we have stated in our earlier decisions, if circumstances in the aged care sector or in the areas of employment covered by the health awards generally change, we will respond expeditiously either on application or at our own initiative.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR728077>
5 Media reports of a locally-acquired case of community transmission in Queensland have been published earlier today.