In response to the current COVID-19 outbreak in Western Australia, the Commission in Court Session has issued an order reinstating provision of the 2020 COVID-19 General Order, pertaining to the taking of unpaid leave, with amendments to reflect the changed isolation requirements.

2020 COVID-19 General Order

In April 2020, the Commission in Court Session issued the COVID-19 Flexible Leave Arrangements General Order under s 50 of the Industrial Relations Act 1979 (WA).  The 2020 General Order contained provisions for unpaid pandemic leave, as well as provisions for the taking of annual leave at half pay. The 2020 General Order ceased to have effect on 31 March 2021.

Current application

On 2 March 2022, in anticipation of increasing COVID-19 cases in WA, the Hon Minister for Industrial Relations made an application for a new General Order to apply to private sector employees. The Minister sought to reinstate the unpaid pandemic leave provisions contained in the 2020 General Order. The reasons for the minister’s application included:

• Seeking to address the regulatory gap for private sector State system employees who are required to isolate due to COVID-19 and may lack access to suitable leave entitlements
• Supporting public health objectives
• Providing clarity for many employers, and protection for employee entitlements; and
• To be consistent with the entitlement to unpaid pandemic leave for national system employees covered by certain modern awards.

The Minister proposed amendments to the provisions of the 2020 General Order, the effect of which enables an employee to take up to two weeks’ unpaid pandemic leave, as a cumulative entitlement, over more than one period, subject to the total period of unpaid pandemic leave taken not exceeding two weeks. An amendment was also made to make it clear that the leave available under the proposed General Order is ‘unpaid pandemic leave’.

Findings

The Commission in Court Session considered that reinstatement of the provisions with amendments were consistent with the objects of the Act. A General Order was issued in the manner proposed by the Minister. The General Order will operate until 30 September 2022 and may be extended on application by a party or at the Commission’s initiative.

The decision can be read here.

The General Order can be read here.