Aged Care Award update – Australia’s developing COVID-19 crisis might justify paid pandemic leave

July 22, 2020
FCB Workplace Law

Industry Focus

Health & Aged Care

As businesses in Victoria and throughout Australia continue to be adversely affected by COVID-19, the Fair Work Commission (Commission) has today issued a Statement outlining their provisional view that the recent developments in the COVID-19 pandemic in Australia would justify paid pandemic leave provisions in the Aged Care Award 2010 (Aged Care Award).

In their earlier decision on 8 July 2020, the Commission determined it was not appropriate (at that time) to grant applications made by a number of unions to vary a number of ‘Health Awards’ to allow paid pandemic leave. The dominant factor in the Commission’s conclusion at that time was the degree of success Australia had in controlling the COVID-19 pandemic which had meant the elevated potential risk to health care workers of actual or suspected exposure to COVID-19 had not manifested itself. The Commission had also given weight to the potential non-recoverable costs to aged care and disability sector employers if new paid pandemic leave were to be introduced into the Health Awards.

The application was stood over due to the escalating situation in Victoria in early July and the potential for the pandemic to radically change in a matter of weeks. In the Statement issued today, the Commission noted the changed circumstances since the 8 July decision, including:

  • the 296 new cases in the last 24 hours, of which 275 were in Victoria;
  • 17 additional deaths since 8 July 2020;
  • of the total number of deaths in Australia, 106 have been aged 70 and over, and 40 residents of Australian government-subsidised residential aged care;
  • the 3,026 currently active cases;
  • that 216 active cases in Victoria have been connected to aged care facilities, of which 93 are staff; and
  • the Australian Government announcement of funding to help aged care facilities ensure staff do not work across multiple centres or homes without such staff being disadvantaged as a result.

Based on these developments, the Commission expressed their provisional view that this would justify temporary paid pandemic leave provisions in the Aged Care Award for an initial period of 3 months.

What is at stake?

Paid pandemic leave provisions in the Aged Care Award (if introduced) would entitle employees to up to 2 weeks’ paid leave on each occasion they are required to self-isolate because they display symptoms of COVID-19 or have come into contact with a person suspected of having contracted COVID-19.

The Commission also noted that if it were to be introduced, paid pandemic leave would apply to casual employees engaged on a regular and systematic basis and would be paid based on an average of their earnings over the previous 6 weeks.

However, in determining whether to proceed to vary the Aged Care Award in accordance with this provisional view, the Commission will take into account the Government’s announcement on 20 July 2020 of a on-off $1,500 payment to financially support Victorian aged care workers who have been instructed to self-isolate or quarantine at home where they cannot rely on sick leave while absent from work. The Commission foreshadowed that this announcement may substitute the need for an award variation, and in this regard further information is required in order to assess the position and whether the provisional view should proceed.

Interested parties and relevant government ministers and authorities have until 12.00pm Friday, 24 July 2020 to file submissions responding to the provisional views of the Commission. The Commission is naturally treating this matter with urgency given the evolving situation in Australia and we expect a final decision to be delivered relatively quickly given the current state of the virus.

FCB Workplace Law has a team of dedicated specialist advocates that can act for clients in responding to the Statement in the Fair Work Commission.

Changes to the Aged Care Award to introduce paid pandemic leave could result in significant costs for aged care facilities if clusters develop in facilities.

FCB Group’s Aged Care Team will keep businesses updated as the consideration of paid pandemic leave provisions further develop.

For more information, please contact Jessica Fisher, Partner and leader of FCB’s aged care team, on 02 9922 5188 or