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Important FWC decision for all Human Resource Management practitioners

In February, the Fair Work Commission ordered an aged care provider to immediately restore leave days to employees that has been advised to keep away from their workplace over COVID-19 transmission fears.

The Presbyterian Aged Care Facility instructed nine permanent employees based within a Sydney facility, to nominate in September, the type of leave they would like to utilise after they were advised that they needed to stay home from work while tests were conducted on residents that had potentially been exposed to the virus.

However, the HSU lodged a dispute after telling PAC that under the terms of its deal, it should instead have paid the employees their "regular earnings" for any shifts missed during the five days.

During the hearing, Commissioner Leigh Johns began his deliberation by noting that he did not accept that the Fair Work Act's stand-down provisions applied in these circumstances. The provisions, he explained, "could only be enlivened as a result of industrial action, a breakdown of machinery or equipment, or "a stoppage of work for any cause for which the employer cannot reasonably be held responsible".

Throughout the hearing, Commissioner Johns made special mention of that fact that the "stand down" under the Fair Work Act Terms, did not apply in these circumstances, stating instead that "the employees would still not have to be paid if they had been prevented from working by a public health order. - "However, that is not what occurred here." "Having carefully considered the orders (see here and here), I am satisfied that nothing in the orders authorised or required the actions taken by PAC.

Commissioner Johns determined that PAC had decided to direct employees to not attend work. As this was PAC's direction to its employees, Commissioner Johns insisted that they needed to comply with the "Age Care Award", which stated, "the cost of paid pandemic leave should fall on the employer". Throughout the hearing Commissioner Johns said that although PAC had made an entirely rational and appropriate decision to keep employees’ home, it could still not be expected that employees bear the cost. Commissioner Johns shone a light on the fact that "the right thing to do would be to re-credit the entitlements to the employees".

It was decided by Commissioner Johns, that in alignment with PAC's coronavirus leave policy, which states that if an 'employee is not sick, but [the] employer requires [the] employee to stay away as a precautionary measure. . . [Presbyterian Aged Care] will pay the employee their ordinary rate of pay for the shifts they would have done in that timeframe'. For these reasons, Commissioner Johns ordered that PAC had to reinstate the leave taken by the relevant employees during the relevant time and to not otherwise deduct pay in respect of the relevant time.

This decision highlights the need for all Human Resource Management areas to take a holistic review of their policies and procedures in the context of how they manage their people during the pandemic.


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