Fair Work Commission extends paid pandemic leave for aged care workers until 29 March 2021

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The Fair Work Commission (FWC) has rejected efforts by business leaders to stop the entitlement – but refused to support a separate bid by the Australian Council of Trade Unions (ACTU) to keep the entitlement in place until COVID-19 is over.

As we reported here, the FWC made an “urgent” ruling on 29 July to grant aged care staff up to two weeks’ leave to try to stop workers from coming in sick at the peak of the pandemic.

At the time, the peak bodies said providers would not be able to provide staff with paid pandemic leave without further Government support.

Business peaks say extension would be “excessive”

The Australian Chamber of Commerce and Industry (ACCI) had opposed the extension, saying that it was “excessive” in relation to the current COVID situation in Australia and the financial situation of the sector “warranted caution” in how long the leave should be extended for.

The Australian Federation of Employers and Industries (AFEI) also opposed the extension on the grounds of the few actives cases left in aged care and the range of infection control measures provided to assist operators.

Currently, the Federal Government is providing funding under its Support for Aged Care Workers in COVID-19 (SACWIC) grant opportunity towards the costs of staff being unable to work because they have tested positive for the virus or been identified as a close contact, but these arrangements end on 30 November – at which point it would be up to providers to pick up the bill.

But the Department of Health’s submission to the FWC indicated that this “timeframe may be extended as needed and additional hotspots may be added, as determined by the Commonwealth for the purposes of this grant”.

Too early to say current situation will be sustained, FWC says

The Commission’s full bench said it was therefore appropriate to extend the entitlement – due to expire on 29 October – another five months until 29 March next year.

“It was only a matter of weeks ago that the resilience of the aged care sector and its staffing model was under severe pressure, at least in Victoria,” it said.

“It is too early to say that the current improving situation will be sustained, and it is essential that infection control measures such as the paid pandemic leave entitlement remain in place for the time being.”

The Commission added that if the low rate of infections in Australia continued, it is likely few employers would be eligible and the costs of the entitlement will be minimal.

Fair Work rejects ACTU bid for indefinite pandemic leave

However, the FWC knocked back the ACTU’s submission that the entitlement should be extended indefinitely until the pandemic has ended.

The unions had argued that the entitlement reduced the risk of spreading the virus in high-risk workplaces – and that the pandemic could continue for two years or more.

The Commission said that the entitlement was only adopted as an emergency measure and it was “highly unusual” to extend a paid leave entitlement to casual employees.

“It is appropriate therefore that it operate in a time-limited way and be the subject of regular review,” they concluded.

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