COVID-19 GENERAL ORDER PURSUANT TO SECTION 50 OF THE ACT

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Commission's Own Motion

APPLICANT

-v-

(Not applicable)

RESPONDENT

CORAM COMMISSION IN COURT SESSION

  Chief Commissioner P E Scott

  Senior Commissioner S J Kenner

  Commissioner T Emmanuel

  Commissioner D J Matthews

  Commissioner T B Walkington

DATE Tuesday, 14 April 2020

FILE NO. APPL 16 OF 2020

CITATION NO. 2020 WAIRC 00205

Result General Order Issued

Representation 

        Ms C Purcell and Mr B Entrekin on behalf of the Hon. Minister for Industrial Relations

        Mr P Moss on behalf of the Chamber of Commerce and Industry of Western Australia (Inc)

         Ms M Hammat and Dr T Dymond on behalf of UnionsWA

         Ms E Clements on behalf of the Western Australian Local Government Association

General Order

Having heard from Ms C Purcell and Mr B Entrekin on behalf of the Hon. Minister for Industrial Relations, Mr P Moss on behalf of the Chamber of Commerce and Industry of Western Australia (Inc), Ms M Hammat and Dr T Dymond on behalf of UnionsWA and Ms E Clements on behalf of the Western Australian Local Government Association, the Commission in Court Session, pursuant to the powers conferred on it by section 50 of the Industrial Relations Act 1979 (WA) hereby makes a General Order in the terms set out in the attached Schedule.

CHIEF COMMISSIONER P E SCOTT

FOR AND ON BEHALF OF THE COMMISSION IN COURT SESSION

Schedule – Provisions relating to the COVID-19 pandemic

1. - Application

(1)               This General Order applies to each employee as defined in subsection 7(1) of the Industrial Relations Act 1979 throughout the State of Western Australia, except for employees of a public sector body within the meaning of the Public Sector Management Act 1994 and police officers, police auxiliary officers and Aboriginal police liaison officers.  These employees are the subject of the Public Sector Labour Relations Circular 6/20 – Leave arrangements for COVID-19. 

(2)               Where an award or industrial agreement contains a term provided for in this General Order that is more beneficial to an employee, then the more beneficial term shall apply.  Otherwise, where there is conflict between the terms of an award or industrial agreement and this General Order, the terms of this General Order shall apply.

(3)               This General Order shall operate on and from the date this General Order issues until 31 July 2020, unless extended on application or at the initiative of the Commission.

2. - Unpaid pandemic leave

(1)               Subject to subclauses (2) and (3), an employee is entitled to take up to two weeks’ unpaid leave if the employee is required, by government or medical authorities or acting on the advice of a medical practitioner, to self‑isolate or is otherwise prevented from working by measures taken by government or medical authorities in response to the COVID‑19 pandemic.  An employer and employee may agree that the employee may take more than two weeks’ unpaid pandemic leave.

(2)   The employee must give their employer notice of the taking of leave under subclause (1) and of the reason the employee requires the leave, as soon as practicable.  This may be a time after the leave has started.

(3)  The employee who has given their employer notice of taking leave under subclause (1) must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the leave is taken for a reason given in subclause (1).

(4)               Leave taken under subclause (1) does not affect any other paid or unpaid leave entitlement of the employee and counts as service for the purposes of entitlements.

(5)               Such leave:

(a)          is available in full immediately rather than accruing progressively during any period of service;

(b)          will be available until 31 July 2020 (unless extended by further variation depending on the duration of the COVID-19 pandemic);

(c)          will be available to full time, part time and casual employees (it is not pro‑rata); and

(d)          must start before 31 July 2020, but may end after that date.

(6)               It is not necessary for employees to exhaust their paid leave entitlements before accessing unpaid pandemic leave.

(7)               Such unpaid leave does not operate on a ‘per occasion’ basis and is available once for those employees compelled to self-isolate, even if they are required to self-isolate on more than one occasion.

(8)               Those caring for others who are compelled to self-isolate are not entitled to unpaid   pandemic leave.

3. - Annual leave at half pay

(1)               Instead of an employee taking paid annual leave at full pay, the employee and their employer may agree to the employee taking twice as much leave at half pay.

Example:  Instead of an employee taking one week’s annual leave at full pay, the employee and their employer may agree to the employee taking two weeks’ annual leave at half pay.  In this example:

• The employee’s pay for the two weeks’ leave is the same as the pay the employee would have been entitled to for one week’s leave at full pay; and

• One week of leave is deducted from the employee’s annual leave accrual.

(2)               Any agreement to take twice as much annual leave at half pay must be recorded in writing and signed by the employee (and a parent/guardian if the employee is under 18).

(3)               The employer must keep the written agreement as part of the employee’s employment record.

(4)               The agreed period of leave must start before 31 July 2020, but may end after that date.

4. - GRANTING ANNUAL LEAVE IN ADVANCE

(1) An employee and employer may agree to an employee taking a period of annual leave in advance of the entitlement being accrued if all of the following conditions are met:

(a)               Any agreement to annual leave in advance must be recorded in writing and signed by the employee (and a parent/guardian if the employee is under 18); and

(b) the written agreement must state the amount of leave to be taken in advance and the date on which the leave will commence; and

(c) the employer must keep the written agreement as part of the employee’s employment record.

(2)               If, on the termination of the employee’s employment, the employee has not accrued an entitlement to all of the period of paid annual leave taken in advance, the employer may deduct from any money due to the employee on termination an amount equal to the amount that was paid to the employee in respect of any part of the period of annual leave taken in advance to which an entitlement has not been accrued.  This provision will continue to apply notwithstanding the expiration of this General Order.

(3) Where an agreement has been reached under this clause and the leave commenced before the expiration of this General Order, then the arrangement may continue to operate for the period agreed between the parties.