To isolate or not: a potentially deadly decision
COVID-19 is a workplace safety issue and its spread is being worsened by job insecurity and work casualisation – making paid pandemic leave provisions essential to protecting working people and the community, as Assistant Secretary/Treasurer Paul Giles writes.
In late July, the union movement won paid pandemic leave for aged care centre employees when the Fair Work Commission (FWC) agreed these workers needed such leave as a proactive measure to combat COVID-19.
At the time of publication of this edition of Independent Voice, however, this decision has not been extended to protect every Australian worker nor is it applicable to employees in the non-government education sector.
COVID-19 specifically is a workplace safety issue; and its spread is potentially worsened by job insecurity and work casualisation.
Casual employees do not accrue personal leave entitlements while those working in relief roles move from employer to employer in order to fill emergent positions and furthermore do not have accrued leave with those employers.
Employees in the education sector remain vulnerable as they have no automatic right or entitlement to paid pandemic leave.
This vulnerability is exacerbated by high levels of casualisation and short-term employment in the non-government education sector.
Putting most vulnerable at risk
To understand the importance of paid pandemic leave, one has only to see what has happened in Victoria where, allegedly, workers have chosen to work while unwell in order put food on the table as they did not have access to appropriate leave arrangements.
The lack of paid sick/personal leave for casual workers, as well as other workers who may not have accrued sick/ personal leave, is forcing people to put themselves, their colleagues and wider community at risk.
No one should be forced to choose between going to work for the income they need to survive and getting COVID-19 tested and isolating/ recovering from illness during this or any designated pandemic.
While most employees may never need to use paid pandemic leave, it would benefit everyone by allowing people to stay at home when they have had actual or potential contact with a vector, symptoms and/or when they are unwell.
This option would reduce contagion within the wider community.
What we need to protect workers
In our sector, some employers have granted paid leave to continuing employees which can be accessed when other accrued leave has been used up.
This does not however assist employees who are in casual employment and who do not accrue leave.
This is also problematic in that employees are forced to use their accrued leave and subsequently will not have access to this used leave after (or even during) the pandemic.
In addition, such leave is at the discretion of employers generally and individually.
Employees have no industrial right or entitlement to such leave.
In the education sector, as a minimum, paid pandemic leave should entitle an employee to a minimum of 20 days of paid leave (non-accumulative) per calendar year.
This leave should be in addition to any other form of leave to which an employee is entitled and/or has accrued; and should be able to be accessed immediately and before any other leave is used.
In the case of casual employees (someone who has been employed casually on a regular and systematic basis), the employee should be paid this leave at a daily rate of pay equal to what they would normally receive.
Accessing paid pandemic leave should not affect other paid or unpaid leave entitlements and should count as service for all other calculations of entitlements.
It is important that such paid pandemic leave is available to full-time, part-time, fixed-term and casual employees so that no employee has to make a choice between staying safe or being able to pay the bills.
Our union believes such leave should be readily available across the sector and able to be accessed if any of the following were to occur:
- The employee has been diagnosed with an infection during a health pandemic.
- The employee is unable to undertake work duties because the school has been shut down because of a health pandemic.
- The employee is subject to self isolation or quarantine measures in accordance with a Commonwealth or state government policy.
- The employee is caring for another person who:
(i) has been diagnosed with an infection during a health pandemic; or
(ii) is subject to self isolation or quarantine measures in accordance with a Commonwealth or state government policy.
- The employee has a child that attends a school or childcare centre that is closed due to a health pandemic.
- The employer or government or medical authorities, require them to self-isolate or quarantine.
Rights at work
An employer could not and should not be able to dismiss an employee or take any other adverse action against them because the employee is entitled to, or takes, paid pandemic leave.
Where a critical health issue occurs, as identified by a declaration of a public health emergency under Section 319 of the Public Health Act 2005 with respect to an actual or potential health pandemic, employees should be entitled to paid pandemic leave as an initial and first response to dealing with the identified crisis.
Where an employee exhausts their entitlement to paid pandemic leave but otherwise meets the criteria for the taking of such leave, an employee should be able to access other leave and any accrued entitlements they have if they so choose.
An employer could ask an employee for evidence as to why this leave was taken and this evidence would need to be enough to satisfy a reasonable person that the employee was entitled to access the leave.
Across the sector our members are now looking to work collectively to ensure specific paid pandemic leave provisions are part of any new agreements – be they single-site or sector-wide.
For assistance in enforcing and actioning any current employer leave provisions related to the pandemic, members should contact their IEUA-QNT organiser in the first instance.
Latest member advice and information is available from our COVID-19 Resources Hub.