By Charles Power

In the year of COVID-19, employees’ leave entitlements have become more important than ever. The ability for an employee to take leave when they have COVID-19, or they are unable to work because they must self-isolate, is helpful not only to the employee, but also to help stop the spread of the virus.

In response to the pandemic, early this year the Fair Work Commission (FWC) introduced the entitlement to unpaid ‘pandemic leave’, and the ability for employees and employers to agree to the employee taking twice as much annual leave at half pay. The end date of this entitlement has now been extended.

In other leave-related news, there are plans to amend the Fair Work Act 2009 (Cth) (FW Act) unpaid parental leave National Employment Standard (NES) provision to permit all parents to take up to 30 days of flexible unpaid parental leave until their child turns two.

Unpaid pandemic leave entitlements extended until March 2021

The FWC has extended the life of the provisions inserted in 74 modern awards entitling employees to 2 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, which is the date the JobKeeper scheme will cease to operate.

The leave entitlements 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 contrast 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. These powers and any agreements made pursuant to them ceased to have effect from 28 September 2020.

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.

This would 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 accompanies changes to the Government Paid Parental Leave (PPL) payments taking effect 1 July 2020, which allowed the 18-week paid parental leave entitlement to be broken into two blocks: the first 12 weeks (the PPL period) and the remaining 6 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 6 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 4 weeks’ notice. If these parents are not already on unpaid parental leave, their employer can cancel their upcoming leave in these circumstances.