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Flexibility measures extended in line with JobKeeper changes

06 October 2020

#Workplace Relations & Safety, #COVID-19

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Flexibility measures extended in line with JobKeeper changes

The Fair Work Commission (FWC) has extended the life of the provisions inserted in 74 modern awards entitling employees to two weeks of unpaid ‘pandemic leave’ and enabling employees and employers to agree to the employee taking twice as much annual leave at half pay.

These provisions will apply until 29 March 2021, being the date the JobKeeper scheme will cease to operate. They can be accessed by any award-covered employer and employee regardless of whether they are qualified to receive JobKeeper subsidies.

The FWC observed that the COVID-19 pandemic is still in progress and if employees do not have access to unpaid pandemic leave there would be a ‘regulatory gap’ in the award safety net concerning employees who are required to self-isolate. Continuing access to unpaid pandemic leave will enable more people to remain in employment and will support the important public policy objective of encouraging those who should self-isolate to do so, thereby limiting the spread of COVID-19 in workplaces and allowing businesses to continue to operate.

The continuation of these award provisions contrasts with the Fair Work Act 2009 (Cth) (FW Act) provisions enabling agreements between JobKeeper qualified employers and employees to take double annual leave at half pay. However, these powers and agreements ceased on 28 September 2020.

In addition, flexibility provisions in the Clerks – Private Sector Award will be extended to 30 November 2020. These provisions provided the template for much of the JobKeeper flexibility provisions inserted in the FW Act, but it may be accessed by employers in respect of clerical employees who are not eligible to receive JobKeeper subsidies.

The provisions in the Clerks Award allow employees working from home to work ordinary hours over a greater span than usually applies in the Award. Furthermore, an employer can agree with permanent employees to temporarily reduce ordinary hours of work for the employees by 25 per cent if at least 75 per cent of the employees agree.

Finally, an employer may, subject to considering an employee’s personal circumstances, request an employee to take paid annual leave, provided that the request does not result in the employee retaining a balance of less than two weeks annual leave after the leave is taken. Such a request must be made a minimum of 72 hours before the date on which the annual leave is to commence. An employee must consider and may not unreasonably refuse the request. This is in addition to the provision enabling employees to take up to twice as much annual leave at a proportionately reduced rate for all or part of any agreed or directed period away from work, including any close-down.

Federal government seeks to make unpaid parental leave more flexible

The federal government plans to amend the FW Act unpaid parental leave NES provision to permit all parents to take up to 30 days of flexible unpaid parental leave until their child turns two.

If passed, the Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Bill 2020 will allow a new parent spending a block of unpaid parental leave with their newborn after birth and then taking 30 days flexibly after they return to work as single days, groups of days or a single continuous block.

This measure would align with changes to the government’s Paid Parental Leave (PPL) payments, which commenced from 1 July 2020, to allow the 18-week paid parental leave entitlement to be broken into two blocks – the first 12 weeks (the PPL period) and the remaining six weeks or 30 days (the flexible PPL period).

Employees can to take up to 30 days of unpaid parental leave flexibly and claim the PPL payment.

The proposed amendments will also ensure 12 months of unpaid parental leave is available for families dealing with stillbirths, infant deaths and premature births. Under the current NES provisions, parents on birth-related unpaid parental leave who experience a stillbirth or the death of their child in the first 24 months of life can be recalled to work from their leave with just six weeks’ notice from their employer. Parents on adoption-related unpaid parental leave whose child dies in the first 24 months of life can be recalled to work from their leave with just four weeks’ notice. If these parents are not already on unpaid parental leave, their employer can cancel their upcoming leave in these circumstances. 

Author: Charles Power

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

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