COVID-19 General Order pursuant to section 50 of the Act

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00121

DELIVERED : Thursday, 24 March 2022

FILE NO. : CICS 3 OF 2022

Applicant

AND

UnionsWA, Chamber of Commerce and Industry of Western Australia, Australian Mines and Metals Association , Western Australian Local Government Association

Respondents

Catchwords : Industrial law (WA) - General Order under s 50 - COVID-19 pandemic - Unpaid pandemic leave - General Order issued

Legislation : Industrial Relations Act 1979 (WA) s 6, s 26(1), s 50   

Result : General Order issued

Representation:   

Applicant : Ms M Williams on behalf of the Hon. Minister for Industrial Relations

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

Dr T Dymond on behalf of UnionsWA

Ms S Verity on behalf of the Australian Mines and Metals Association

Ms V Cullen with Ms N Abend on behalf of the Western Australian Local Government Association

Case(s) referred to in reasons:

Commission’s Own Motion v (not applicable) [2020] WAIRC 00203; (2020) 100 WAIG 231

Commission’s Own Motion v (not applicable) [2020] WAIRC 00205; (2020) 100 WAIG 235

Commission’s Own Motion v (not applicable) [2021] WAIRC 00088; (2020) 101 WAIG 372

Reasons for Decision

Background

1         On 14 April 2020, the Commission in Court Session issued the COVID-19 Flexible Leave Arrangements General Order ([2020] WAIRC 00205; (2020) 100 WAIG 235) under s 50 of the Industrial Relations Act 1979 (WA), to provide for flexible leave arrangements in association with the COVID-19 pandemic. The 2020 General Order contained provisions for unpaid pandemic leave, as well as provisions for the taking of annual leave at half pay.

2         The Commission, acknowledging the uncertainty of the months ahead at that time, noted that many of the industries likely to be affected by the impact of COVID-19 were in the small business, non-incorporated sector within the scope of the State industrial relations system: Commission’s Own Motion v (not applicable) :[2020] WAIRC 00203; (2020) 100 WAIG 231 at [4].  In issuing the 2020 General Order, the Commission aimed to ‘assist businesses to continue to operate and to preserve employment and continuity of employment for the benefit of those businesses, their employees and the economy generally’: at [5]. 

3         The 2020 General Order ceased to have effect on 31 March 2021: [2021] WAIRC 00088; (2020) 101 WAIG 372.

Application of the Minister

4         On 2 March 2022, the Hon Minister for Industrial Relations, made an application for a further General Order to apply to private sector employees, to reinstate the unpaid pandemic leave provisions contained in the 2020 General Order.  The reinstatement of the flexible annual leave provisions in the 2020 General Order are not sought in the current application.  In summary, the grounds for the Minister’s application are:

(a)  There currently exists a regulatory gap in that private sector State system employees who are required to isolate due to COVID-19, but who are not sick or caring for another person, may lack access to suitable leave entitlements, as sick and carer’s leave entitlements do not apply in these circumstances;

(b) The current Omicron variant outbreak is expected to result in high COVID-19 case numbers, and it is anticipated that a significant number of Western Australians will be unable to attend work due to a requirement to self-isolate over coming months; and

(c)  The reinstatement of an unpaid pandemic leave entitlement would support public health objectives, provide clarity for any employers who are unsure of how to respond to employees who are required to isolate, protect employee entitlements, and be consistent with the entitlement to unpaid pandemic leave for national system employees covered by certain modern awards.

5         The Minister submitted that the application supports the objects of the Act under s 6 and is consistent with the requirements of s 26(1) of the Act. The Minister proposed that the General Order operate until 30 September 2022.

Consideration

6         Following the filing of the application for the General Order, the Commission convened a conciliation conference between the parties under s 51BC of the Act.  Arising from the conciliation conference, and the issues discussed, the Commission made orders to the effect that the Minister would provide the other parties with revisions to the draft General Order and, subject to further discussions between the parties, the Minister would file an amended proposed General Order by 18 March 2022.   

7         A matter at issue between the parties was whether unpaid pandemic leave would, given the changed circumstances since the making of the 2020 General Order, not be limited to only one occasion on which unpaid pandemic leave can be taken, as specified at cl 2(7) of the Minister’s proposed General Order in the initial application.  The changed circumstances include a reduction in isolation periods from 14 to seven days; certain exclusions from isolation requirements for those classed as critical employees; and the increased likelihood that employees may have to isolate on multiple occasions during the term of the proposed General Order.  

8         Following further discussions between the parties, and consideration of this issue by the Minister, the Minister filed an amended proposed draft General Order on 18 March 2022. The proposed order deletes reference to cl 2(7), thus, no longer limiting the ability of an employee to access unpaid pandemic leave to one occasion only.  The effect of this amendment is to enable 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.  Further, a minor amendment has been made by the Minister to cl 2(1), to make it clear that the leave available under the proposed General Order is ‘unpaid pandemic leave’. 

9         By way of responses filed on 22 March 2022, the respondents now do not oppose the Minister’s amended application for a General Order. Whilst UnionsWA proposed a further variation to cl 2(7), to specify that an employee be able to take unpaid pandemic leave of up to two weeks ‘each time’ they are required to isolate, we are not persuaded to make that amendment.  The entitlement will be a maximum of two weeks unpaid leave, which can be take over multiple periods.  In a further written submission filed on 24 March 2022, the Minister informed the Commission that he and the other parties had conferred on 23 and 24 March 2022 and the lack of opposition to the Minister’s amended draft of the General Order was confirmed.

10      We are satisfied that the proposed General Order is consistent with the requirements of the Act.  It reflects the changed circumstances now in existence, as set out in the grounds to the Minister’s application.  We do not need to repeat the views expressed by the Commission in Court Session in its 2020 General Order reasons for decision.  To the extent that those reasons dealt with the proposal for unpaid pandemic leave, we adopt and apply them for present purposes.  In short, we are satisfied that the grounds of the application are made out and it is appropriate to exercise our powers under s 50 of the Act, to assist businesses to ‘operate and to preserve employment and continuity of employment for the benefit of those businesses, their employees and the economy generally’: [2020] General Order decision at [5].

11      The General Order will operate until 30 September 2022.  To ensure that changes in circumstances between now and that time may be considered, the General Order may be extended on application by a party or at the Commission’s initiative.

12      Finally, we thank the parties for their cooperative approach in dealing with the present application. This has enabled the matter to be dealt with expeditiously.  Minutes of the proposed General Order now issue.  Should any party wish to speak to the minutes of the proposed General Order, they should do so in writing before 3:30pm on Friday, 25 March 2022.