FAQ. 1 - Leave

Our FAQs and Factsheets provide information and general advice which is current at the time of publication. With government initiatives and legislation changing quite rapidly, we will continue to service our members by updating our information as soon as possible. We encourage you to visit our Member Portal for these updates or contact our WAS team for specific advice on 1300 273 762 or at was@professionalsaustralia.org.au
What leave is available to me if I fall sick with Coronavirus, or a member of my family falls sick and I need to look after them?

If you are a full time or part time employee, and you are not fit for work because of an illness, or you are required to provide care or support to a member of your immediate family or household because of their illness, then you may take your paid personal leave.  If you have insufficient paid personal leave to cover your time away, you can seek access to your annual leave, long service leave or attempt to negotiate for paid special leave to be provided.

If you are a permanent employee and are required to look after a family member who is sick with coronavirus, you are entitled to take paid carer’s leave.  Under the Fair Work Act 2009 (Cth), full time and part time employees have an entitlement to 10 days of paid personal / carers leave per year (pro rata for part time employees) and those leave days accrue from year to year and can be used either because the employee is not fit for work because of a personal illness or to provide care or support to a member of the employee’s immediate family or household.  After using up any paid personal leave, the Fair Work Act also provides for 2 days unpaid carer’s leave.  A casual employee is entitled to 2 days of unpaid carer’s leave per occasion.  Your entitlements might be more generous depending on what’s written in your employment contract, Award, Enterprise Agreement or workplace policies.

In some situations, unpaid pandemic leave may be available to an employee who contracts coronavirus or otherwise is required to self-isolate because of contact with a person with a confirmed case of coronavirus.  Please see below for further information about pandemic leave.

I have not been diagnosed with Coronavirus, but my employer has directed me to take personal leave and undergo medical testing before I can return to work. Can my employer make me use my Personal Leave?

Your employer does have the right to direct you not to attend work if there is a risk your attendance will create a health and safety risk for other employees.

You derive your entitlement to paid personal leave from the National Employment Standards (contained in the Fair Work Act) or from an applicable award or enterprise agreement or from your common law contract of employment.  Those instruments generally are worded such that it is the employee’s choice as to whether and when to take Personal Leave, provided the employee can substantiate his or her illness with evidence such as a doctor’s certificate, if required.

If you request time off work because you or a member of your family or household are sick with coronavirus, your employer can’t make you access your personal leave, but in those circumstances you will not be entitled to be paid for the time you take off work (so most employees will choose to access their personal leave).

The situation may be different if you are a full or part time employee and your employer directs you not to attend the office because there is a risk your attendance will create a health and safety risk for other employees.  If, for example, you are directed by your employer to stay home in line with the Australian Government’s health and quarantine advice, but you are not sick with coronavirus, you should ordinarily be paid while the direction applies.  Employees covered by some modern awards, however, may have access to unpaid pandemic leave in this situation.  Please see below for further information on unpaid pandemic leave.
In general, your employer should not be able to force you to take personal leave unless they have reasonable and valid concerns based on factual information about health and safety risks. 

If your employer is concerned and directs you to remain at home until medical clearance is obtained, they should continue to pay you your wages (unless you are accessing unpaid pandemic leave).
If you find yourself in such a situation, please contact the WAS team via email: was@professionalsaustralia.org.au

What if I am stuck overseas or am required to be quarantined or to self-isolate?

Please notify your employer as soon as possible if you find yourself in this situation. It may be possible for you to negotiate special arrangements such as working from home (if your role allows you to), taking personal leave if you are unwell, or if you do not have sufficient personal leave to arrange to take annual leave, long service leave, special leave or unpaid leave.

On 8 April 2020, a large number of modern awards were varied to include provisions for unpaid pandemic leave. 

Some of the awards that were varied include the:

  • Professional Employees Award (which covers professional engineers and scientists, as well as some IT professionals);
  • Pharmacy Industry Award;
  • Health Professionals and Support Services Award;
  • Architects Award;
  • Surveying Award; and
  • Animal Care and Veterinary Services Award.
The variations are temporary and remain in place until 30 June 2020, although the period of operation may be extended by application.  Unpaid pandemic leave is available to permanent employees (full time and part time employees) and casual employees. The leave needs to start before 30 June 2020, but it can end after that date. Unpaid pandemic leave is available to employees covered by one of the relevant awards that has been varied. 

An employee may access two (2) weeks of unpaid pandemic leave if the employee is prevented from working because of:

  • A requirement to self-isolate by medical or government authorities, or due to advice from a medical practitioner; or
  • Measures taken by government or medical authorities in response to the COVID-19 pandemic.
If you find yourself in a situation like the above, please contact the WAS team for individual advice on: was@professionalsaustralia.org.au.

 My employer has directed me to stay home but I am not sick with Coronavirus. Should I be paid?

If you are a full time or part time employee and are ready, willing and able to work, you are generally entitled to be paid while the direction applies.  There may be clauses under your employment contract, Award, Enterprise Agreement or workplace policies that may apply.  If you are working from home then you should be paid.

Under the Fair Work Act, you are protected from being dismissed because of a temporary absence due to illness or injury.  Furthermore, your employer cannot discriminate against you on the basis of disability (which can include disease or illness).
Unpaid pandemic leave of two weeks is available to employees covered by some awards, where the employee is required to self-isolate as a result of government or medical direction, or on advice from a medical practitioner.  Please see above for further information about pandemic leave.

Should you have concerns around being discriminated against in your workplace, please get in touch with the WAS team via email:  was@professionalsaustralia.org.au
 
Can I be stood down without pay if I have the Coronavirus?

An employer cannot stand down an employee without pay because they have coronavirus.  If an employee has coronavirus, the employee may be able to access paid personal leave or unpaid leave.

If your employer seeks to shut your workplace down due to reasonable concerns about the health and safety of its employees, it may be possible for them to engage in the stand down section of the Fair Work Act.
Furthermore, the new JobKeeper arrangements in the Fair Work Act allow for a “JobKeeper enabling stand down direction” in certain circumstances.  Please see below for further information.

If such a situation arises at your workplace, please immediately contact the WAS team for individual advice via email:  was@professionalsaustralia.org.au.

What happens if my employer needs to let me go or reduce my working hours?

If there is a business downturn due to the coronavirus, some employers may make the decision to issue redundancies.  Your employer must meet the requirement under the Fair Work Act before it can terminate your employment by reason of redundancy.

If your employer seeks to vary your work rosters, consideration must be given to any relevant clauses in your employment contract, Award, Enterprise Agreement or workplace policies.  Furthermore, there are now provisions in the Fair Work Act regarding JobKeeper arrangements which allow employers to reduce an employee’s working hours.

Under the new JobKeeper provisions in the Fair Work Act, a qualifying employer may direct an eligible employee to work less hours or days, including working no hours, in certain situations.
An employer may give an employee a “JobKeeper enabling stand down direction” if the employee cannot be usefully employed for their normal days or hours because of changes to business attributable to coronavirus (and associated government initiatives). 

In this situation, the employer may direct the employee to: 

  • not work on particular days the employee would ordinarily work; or
  • work for a lesser period of time than the employee would ordinarily work on particular days; or 
  • work a reduced number of hours (including no hours).
Employees do not have to comply with a JobKeeper enabling stand down direction if it is unreasonable to do so in all the circumstances.  There are various factors to consider to determine reasonableness here.
If you find yourself in a situation like this, please get in touch with the WAS team for individual advice, via email:  was@professionalsaustralia.org.au.

Can my employer prevent me from travelling?

Your employer can direct you not to undertake work-related travel if it is for reasonable concerns around health and safety.  However, your employer should not be able to direct you not to undertake private travel.

What about casual employees and independent contractors?

In general, neither casual employees nor independent contractors have paid sick or carer’s leave entitlements. However, you may qualify for the sickness allowance or JobSeeker Payment.

Circular 6/2020 – Leave arrangements for COVID-19

 

Contact details for the Workplace Advice & Support team

Emailwas@professionalsaustralia.org.au
Ph:  1300 273 762

Please note that this publication is current as at Wednesday 29 April 2020.