The COVID-19 pandemic has raised many difficult issues for local government employers regarding the management of risks to workers and the general public. It has also created significant challenges for local governments regarding the rearrangement of work to adapt to the associated changes to community demand for the services local governments usually deliver.
To help local governments to adapt their workplaces, the Fair Work Commission and the WA Government have made some changes to the taking of leave.
Modern Award Variations
On 8 April 2020 the Fair Work Commission varied a significant number of modern awards to provide for additional temporary measures to achieve the award objectives during the COVID-19 pandemic.
The Local Government Industry Award 2010 (Award) was included in this exercise, with the variations coming into effect on 8 April 2020 by the insertion of a new 'Schedule X – Additional Measures During the COVID-19 Pandemic'.
The key points to note from the insertion of Schedule X are:
- The amendments will cease to have effect on 30 June 2020, unless extended by the Commission.
- An employee is entitled to take up to two weeks’ unpaid 'pandemic leave' if the employee:
- is required to self-isolate by government or medical authorities, or on the advice of a medical practitioner;
- is consequently prevented from working, or is otherwise prevented from working by measures taken by government or medical authorities in response to the COVID-19 pandemic; and
- starts the leave before 30 June 2020.
- An employer and an employee may agree that the employee may take more than two weeks of unpaid pandemic leave;
- An employer and an employee may agree in writing that the employee takes twice as much of his or her accrued annual leave at half pay provided the period of leave must start before 30 June 2020.
These changes to the Award will not impact employees covered by an enterprise agreement. Local government employers who consider their enterprise agreements restrict them from making changes to flexibility to respond to the challenges caused by COVID-19 may consider temporarily varying their enterprise agreements. To assist employers to do this, the Federal Government has temporarily varied the Fair Work Regulations 2009 to reduce the notice period required of employers when proposing a variation to an enterprise agreement from seven days to one day.
WAIRC follows suit in providing State-system employees pandemic leave
The Western Australian Industrial Relations Commission has issued a COVID-19 order enabling state system employees to access up to two weeks of unpaid pandemic leave and the option to enter into an agreement with their employer to take annual leave at half pay.
This change will apply to small local government employers who may remain in the State industrial relations system.
Amendment of Local Government (Long Service Leave) Regulations
The WA Government has amended the Local Government (Long Service Leave) Regulations to provide greater access to paid leave for local government employees who were stood down during the state of emergency. This allows for some financial relief to local government employees given they are not eligible to receive, through their employers, the Federal Government's JobKeeper payments.
The material changes to the Local Government (Long Service Leave) Regulations include:
- The expansion of continuity of service - A new regulation 4(da) provides that any period of absence from duty connected with an employer's response to a hazard (such as the state of emergency declared due to the COVID-19 pandemic), or the impact or consequences of the hazard, is deemed as continuous service towards an employee's next entitlement of long service leave;
- The relaxation of access to entitlements - Currently Regulation 7 limits the granting and taking of long service leave to one period or, by agreement, in not more than three consecutive periods. This restriction has now been lifted and it allows local government employees to take long service leave by agreement in two or more separate periods;
- Advanced access to long service leave - A new right has been established by regulation 7A(2) for employees to take long service leave in advance, by agreement, subject to two conditions:
- The employee must have competed at least seven years of continuous service of the normal accrual period; and
- The approval for the advance leave is given at a time when a state of emergency declaration applies to the district of part of a district where the employee works.
Many local government employers and their employees will act swiftly to use the new flexibilities to adapt to the impacts of COVID-19.