The events of last month as a result of COVID-19 have been unprecedented. The need for emergency measures to prevent the spread of the disease has resulted in full or part closures of schools and businesses, a huge proportion of the paid workforce now working from home, and different ways of delivering goods and services. In order to assist workers and businesses to survive, governments and the Fair Work Commission have mobilised to free up employment conditions. We expect this is to be only the beginning.

The Fair Work Act and the JobKeeper Scheme

The Fair Work Act 2009 (Cth) has been amended to provide significantly more flexibility in changing employment conditions but only in relation to employers who are eligible for the JobKeeper Scheme. The changes give employers greater flexibility in relation to:

• giving directions to reduce hours and days of work, including stand down provisions
• giving directions to change usual duties
• giving directions to change work location (including working from home)
• making agreements to work different days and times
• making agreements to take annual leave.

Further information is available on the Fair Work Ombudsman’s website Fair Work Ombudsman Information: Direction to reduce hours or days of work-JobKeeper enabling stand down directions.

While the employee is subject to the above Fair Work Act JobKeeper enabling provisions, the employee’s usual terms and conditions of employment (for example under a modern Award, Enterprise Agreement or employment contract) continue to apply, except where the JobKeeper enabling direction or agreement is different to the employee's usual terms and conditions.

Changes for Staff Covered by Awards

The following changes only apply from 8 April 2020 to school staff who are covered by the Educational Services (Teachers) Award and the Educational Services (Schools) General Staff Award. (They also apply to employees under 97 other awards).

At this point these changes do not appear to apply to staff who are covered by Enterprise Agreements.

Unpaid Pandemic Leave

Employees who are prevented from working:

• as a result of being required to self-isolate by government or medical authorities, or acting on the advice of a medical practitioner, or
• by measures taken by government or medical authorities in response to the pandemic (for example, an enforceable government direction restricting non-essential businesses),

can access up to two weeks’ unpaid pandemic leave. The leave does not have to be accrued, the full two weeks is available immediately and in full (not pro-rated) to full-time, part-time, and casual employees. The leave needs to start before 30 June 2020 but can finish after that date. Employees do not have to use all of their paid leave before accessing unpaid pandemic leave. Notice and evidence provisions apply.

See also: Unpaid pandemic leave in awards

Annual Leave at Half Pay

These changes to annual leave only apply to General Staff and teachers covered by the above Award who are employed in early childhood services that operate for at least 48 weeks a year.

Employees can take their annual leave at half pay, and double their time off work, if the school agrees. This means an employee gets one week’s annual leave payment (including annual leave loading if applicable) for every two weeks of annual leave that they take.

The agreement to do so must be in writing and a record must be maintained by the school. The leave needs to start before 30 June 2020 but can finish after that date.

Long Service Leave

Long service leave can be used as a way of maintaining employees’ incomes in the short-term where their workloads have been reduced or there is no work for them to do. However, access to long service leave is usually a fairly rigid process governed by state/territory laws. This has made it more difficult for employers and employees to use long service leave in the COVID-19 circumstances.

So far NSW and the ACT have introduced changes to their long service leave schemes that will apply during the period of the COVID-19 pandemic.

New South Wales

The changes to long service leave allow:

• if the employee and the employer agree, the school to give less than one month’s notice to take long service leave. This was previously mandated at a minimum of one month.
• if the school and the employee agree, the employee to take a period of less than one month’s long service leave in advance. This was previously a minimum period of one month’s leave in advance.

Australian Capital Territory

In the ACT, where a state of emergency or a public health emergency has been declared by the ACT Government, the employer may dispense with the 60 day notice requirement in directing an employee to take long service leave, provided that the employee agrees.

Employees Covered by Enterprise Agreements (EA)

Except for the changes in the Fair Work Act relating to the JobKeeper Scheme, schools that have an Enterprise Agreement (EA) are still bound by the terms of the EA notwithstanding the significant changes currently occurring in the work environment. Any changes to the terms of the EA must either be done by:

• seeking a variation of the EA, or
• using Individual Flexibility Arrangements (IFA) on an individual employee by individual employee basis.

To vary an EA the steps are very similar to making a new EA: employees must vote on the variation and if the vote is successful then this variation must be lodged with the Fair Work Commision, which will review to make sure that the variation passes the “better off overall test” (BOOT) before it is approved. The Fair Work Commission has the power to waive the BOOT test where it is in the public interest to do so. So far there has been no move to simplify the procedures required to modify an EA but the Fair Work Commission has committed to expediting any applications to vary an EA.

The IFA can be used to vary certain clauses in the EA that will suit the needs of the employer and the employee, such as working hours. However, the IFA must also ensure that the employee is better off overall in relation to the conditions in the EA, and the employee cannot be coerced into agreeing to an IFA.

Stay Tuned – This is a Dynamic Environment

All governments and the Fair Work Commission are very well aware of the economic pressures on all employers and the need to ensure that the economy survives through the COVID-19 disruptions. To that end there will inevitably be further changes to employment conditions. It is very important for all schools to stay abreast of any changes to laws, regulations, directives or Awards, as no one would benefit from the distractions of being hauled before a court or tribunal for failing to comply.