Aged Care Industry Update – September 2020

September 23, 2020

The Aged Care industry has been faced with a huge number of challenges and changes in 2020. Many changes have been in response to the COVID-19 pandemic, others have arisen from major case developments within the employment law framework, and compliance in the sector more broadly.

FCB’s Aged Care team considered it would be useful to summarise the main changes and provide a view on what we might see next.

Paid Pandemic Leave – Modern Awards

In July 2020, the Fair Work Commission introduced 2 weeks of paid pandemic leave for employees in the Aged Care industry covered by the Aged Care Award 2010, Nurses Award 2010 and the Health Professionals and Support Services Award 2020.

The temporary changes provide employees in the aged care industry (including regular and systematic casuals) with up to 2 weeks’ paid pandemic leave on each occasion they are prevented from working because of reasons outlined in the Award, including where the employee is required by government or medical authorities to self-isolate or quarantine.

The Award rules provide that employees can’t take paid pandemic leave they are entitled to take paid sick or carer’s leave for that situation or are entitled to workers compensation benefits due to contracting the virus.

The new paid pandemic leave provisions operate from 29 July 2020 to 29 October 2020 however may be extended depending on how the pandemic develops in Australia. For more information on the entitlement see our related article here.

What about Enterprise Agreements?

The decision does not insert paid pandemic leave into Enterprise Agreements and will therefore not affect aged care workers employed under an Enterprise Agreement.

The only exception to this is if the Enterprise Agreement includes a clause that incorporates provision of the above Awards. While this is unlikely, it is certainly not impossible, and providers should consider the terms of their Enterprise Agreements carefully and consider seeking advice where there is any uncertainty.

Will other Awards be impacted?

The Full Bench left open the possibility of extending paid pandemic leave to other Awards based on changed circumstances.

Since the decision in July, unions have pushed for the extension of paid pandemic leave to disability support workers covered by the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award). In a Statement issued by the Fair Work Commission 17 August 2020 the Commission outlined their provisional view that the material currently before them was not sufficient to demonstrate that it is necessary to vary the SCHADS Award in the manner proposed by the unions. The matter has however been re-listed for further evidence and submissions.

It is fair to say that we will continue to see pushes by the unions to extend paid pandemic leave into other Awards and industries and that the Commission will look to review and consider these applications in a timely fashion given the pace at which the pandemic can change.

 

Health Awards – Extension of Additional Measures During the Pandemic

On 31 July 2020, the Fair Work Commission extended the operation of Schedule X (Additional Measures During the COVID-19 Pandemic) of the ‘Health Awards’ to 29 October 2020.

This means unpaid pandemic leave and annual leave at half pay will be available to employees covered by the Health Awards, including the Aged Care Award 2010, Health Professionals and Support Services Award 2020, Nurses Award 2010 and the Social, Community, Home Care and Disability Services Industry Award 2010 until 29 October 2020.

 

Government Pandemic Leave Disaster Payment for Victorians

Another noteworthy announcement affecting Victoria was the Australian Government’s introduction of Pandemic Leave Disaster Payments.

Persons over 17 years of age in Victoria who have no income from paid work (including no sick leave entitlements) can claim the payment where they have been told by the Victorian Department of Health and Human Services (DHHS) to self-isolate or quarantine.

However, the payment is not available if the person already receives any income, earnings or salary from paid work. This means an employee who receives paid pandemic leave under one of the 3 Awards above would not be entitled to the disaster relief payment for the same period. The payment is also not available to a person already receiving any income support payment, Paid Parental Leave or Dad and Partner Pay, Jobkeeper or the Victorian Coronavirus (COVID-19) Worker Support Payment.

For more information on the Disaster Payment please see the Services Australia website.

 

Victorian Lockdown and Guiding Principles for Residential Aged Care in Victoria.

Despite effort to curb the rising number of coronavirus cases, Victoria was forced to implement Stage 4 restrictions from 2 August 2020. While the Aged Care industry is naturally considered a permitted industry, there are still a number of important changes that providers in Victoria need to be mindful of at this time.

In particular, the Guiding Principles for Residential Aged Care – Keeping Victorian Residents and Workers Safe (Guiding Principles) were established with the aim of safeguarding residents and workers from contracting COVID19 in residential aged care facilities. The Guiding Principles seek to achieve this by having Victorian aged care workers based with one residential aged care facility only during the high-risk pandemic period.

The Guiding Principles are initially in place for an 8 week period from Monday 27 July until 25 September 2020. The period the principles are in place and their application to other states and territories may be extended as a result of the pandemic and advice from the Government.

The key practical implication from the Guiding Principles is that an employee who requests (in writing) unpaid single-site leave to work at a second provider must be granted that leave and the employer must hold the employee’s position for a minimum of 8 weeks for the agreed period of single-site leave.

Employees can continue to access their annual leave and long service leave however personal leave and annual leave will not continue to accrue with the additional employer if the employee is taking unpaid leave. The Guiding Principles protect continuity of service (including for redundancy purposes) and long service leave will continue to accrue.

As a result of taking this leave, the employee must not be disadvantaged in the future with respect to progression, development, learning and other opportunities in the workplace.

 

South Australia – Emergency Management Residential Aged Care

In South Australia the Emergency Management (Residential Aged Care Facilities No 8) (COVID-19) Direction 2020 (SA Direction) is now in effect.

The key employment relations matters arising from the SA Direction are that from 16 September 2020 a personal care worker who provides personal care to a resident (whether as an employee or contractor) at a residential aged care facility (RACF) must not provide personal care to a resident at another RACF within 14 days of providing personal care to a resident at the first RACF.

The SA Direction also imposes general limitations on entry to a RACF, including but not limited to, where the person has arrived in South Australia from a place outside South Australia that was not a ‘low community transmission zone’ (for example arriving from New South Wales or Victoria), or had a known contact with a confirmed case in the last 14 days.

From 27 August 2020 all RACF were required to have a Workforce Management Plan that requires all employees, contractors and volunteers to:

• provide details of any additional places of employment (if relevant); and
• notify the RACF if they become aware of a case of COVID-19 being identified at their additional place of employment.

RACF’s must keep records of any notifications given under the SA Direction.

The SA Direction also outlines restrictions which impact a resident’s ability to leave residential aged care facilities, visitation rights to these facilities and requirements for an infection control plan.

 

Mondelez Leave Case Overturned.

On Thursday, 13 August 2020 the High Court handed down its much anticipated a decision clarifying how personal/carers leave accrues and is taken under the National Employment Standards (NES).

The decision overturned the Full Court of the Federal Court of Australia’s decision in August 2019 which determined full-time and part-time employees were entitled to 10 days’ personal/cares leave per year and each day was found to mean the hours the employee would have worked on that day. A decision that created significant confusion and resulted in impractical outcomes.

The High Court in their majority judgment returned to the traditional construction of section 96(1) of the Fair Work Act 2009 (Cth) and declared:

• the expression ‘10 days’ in the NES means the amount of paid personal/carers leave accruing for every year of service equivalent to an employee’s ordinary hours of work in a week in a fortnight or 1/26 of the ordinary hours of work in a year; and
• that a ‘day’ refers to a ‘notional day’ and means 1/10 of the ordinary hours of work in the fortnight.

This is a welcomed decision for the industry and employer across Australia as it re-establishes certainty to the accrual and taking of personal/carers leave and avoids the impractical consequences of the previous interpretation of the Federal Court.

Providers should examine whether the High Court’s ruling is consistent with their payroll practices, or whether an adjustment may now be made.

 

Workpac v Rossato – What is casual employment?

In 2018 the WorkPac v Skene case sent shockwaves in the labour market when a casual employee was in hindsight found to have been employed on a permanent basis. In May 2020, a new Court decision in Workpac v Rossato [2020] FCAFC 84 has resulted in further concern from employers of casual employees.

This case potentially allows certain casual employees to claim leave entitlements under the Fair Work Act 2009 (Cth). The case also found that employers were not able to offset any casual loading already paid to the employee against the amount owed.

The court found Mr Rossato was not a casual employee and was entitled to permanent employee entitlements. In making this finding the court hard regard to:

• the roster arrangements which indicated that Mr Rossato was being offered regular and predictable hours of work;
• timesheets were pre-filled with the set hours which indicated Workpac knew there would be a set pattern of work during the employment; and
• some of the notices to Mr Rossato contained terms that allowed WorkPac to claim damages if he failed to attend work or rejected a shift he was rostered for, and others put Mr Rossato on notice that he may be asked to pay for accommodation and transport costs if he did not attend for a rostered shift.

There is a natural concern that this decision has the potential to lead to claims being made by employees challenging the status of their employment and entitlements. Providers should consider reviewing the nature and utilisation of workers on casual employment arrangements to ensure employees are appropriately classified. While not a silver bullet, it is also important that all employers review their casual contracts to ensure they are appropriate having regard to the nature of casual employment.

 

Aged Care Award – Timing of Termination Payments

On 26 August 2020 the Fair Work Commission gave effect to a variation to the Aged Care Award 2010 in relation to the timing of payment in termination of employment.

Previously, clause 17 of the Award provided all wages and other monies owing to an employee on termination were to be paid no later than the last day of the formal notice period. The clause, however, was silent on timing of termination payments in the case of summary dismissal and payment in lieu of notice.

Clause 17.3 of the Award has been varied to clarify that in all other circumstances, the employer must pay all wages and other monies owing to an employee no later than 7 days after the day on which the employee’s employment terminates.

The requirement to pay wages and other amounts the varied clause 17.3 is still subject to the employer making authorised deductions under the Award or the Fair Work Act 2009 (Cth).

 

Workers Compensation Changes

New South Wales

The Workers Compensation Act 1987 (NSW) was amended in May 2020 to insert a ‘presumption’ that if a worker in a particular industry tests positive for COVID-19, it is presumed that the disease was contracted in the course of their employment and that the employment was the main contributing factor to contracting the disease.

The onus is now on the employer to establish that the disease was not contracted in the course of employment. This presumption will also extend to casuals as long as they worked 1 day in the 21 day period prior to being diagnosed.

The industries to which this presumption will apply include disability and aged care facilities and the health care sector, in addition to a number of non-health related industries. For more information see our related article here.

Victoria

A new criminal offence of workplace manslaughter has been introduced into the Occupational Health and Safety Act 2004 (Vic) (OHS Act). The offence applies where:

• an employer owes a duty under OHS Act to ensure the health and safety of another person;
• the employer or an officer of the employer engages in conduct relating to the employer’s business;
• the conduct causes the person’s death; and
• the conduct is negligent.

This offence applies to the death of members of the public, not just employees. A maximum penalty of 20 years imprisonment would apply to individuals, and a maximum fine of 100,000 penalty units (around $16 million) would apply to companies.

These new provisions came into effect on 1 July 2020 and do not operate retrospectively. The changes do not introduce new responsibilities, but stronger penalties on already existing duties under the OHS Act.

 

What else is on the radar?

IR Working Groups

The Morrison Government is currently convening a number of working groups to consider workplace relations reform to drive the economic recovery following the impact of COVID-19. The five areas the working groups are reviewing are:

1. Casual and fixed-term employees.
2. Compliance and enforcement.
3. Greenfields agreements for new enterprises.
4. Award simplification.
5. Enterprise agreement making.

1 February 2021 is the target date set to deliver the IR changes the Government hopes the working groups will achieve. FCB Workplace Law and the Aged Care team will continue to monitor these groups the developments that arise.

Workpac v Rossato

Workpac has appealed against the Full Court decision outlined above, but only in relation to their ability to offset or seek restitution for the casual loading paid to Mr Rossato (and not whether he was a casual employee at law).

 

FCB Group’s Aged Care Team will keep businesses updated with any further development impacting the industry. For more information, please contact Jessica Fisher, Partner and leader of FCB’s aged care team, on 02 9922 5188 or jmf@fcbgroup.com.au.