Health Sector Awards - Pandemic Leave [2020] FWCFB 3561 | Case summary

[2020] FWCFB 3561

Health Sector Awards - Pandemic Leave [2020] FWCFB 3561 | Case summary | Zoe

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• Supported Employment Services Award 2010[8]

[5] The Full Bench noted the ACTU's submission that, in its view, employees covered by these awards should be entitled to paid leave on multiple occasions. The ANMF likewise submitted before the Full Bench that front-line health care workers, including nurses, had a high level of exposure to the COVID-19 virus, were being infected at higher rates than the general public, and were likely to be required to self-isolate on more than one occasion to minimise the spread of infection. The HSU made a similar submission in respect of employees involved in the care of "the most vulnerable members of the community, including people with disabilities, elderly people, and patients who are sick or immunocompromised".[9] The APESMA also submitted that pharmacists were on the "front line" and should be entitled to paid leave on multiple occasions. In response to these submissions, the Full Bench indicated that it would shortly convene a conference of interested parties in order to establish a separate process to address the issues raised by the ACTU, the ANMF, the APESMA and the HSU.

[6] A conference was convened to discuss the issue raised by the unions on 14 April 2020. Following this conference, the President of the Commission, Justice Ross, issued a statement on 15 April 2020[10] (April statement) in which it was noted that the ACTU was coordinating the finalisation of claims in respect of the matter. The statement also included some commentary about the coverage of enterprise agreements in the areas covered by the Health awards identified by the ACTU and other unions. We will refer to that commentary later in this decision.

[7] Following the April statement, the following applications were filed pursuant to s 158 of the Fair Work Act 2009 (FW Act):

Application by the HSU and the United Workers' Union (UWU) to vary the Aboriginal Community Controlled Health Services Award 2020;

Application by the HSU, UWU and ANMF to vary the Aged Care Award 2010;

Application by the UWU and the HSU to vary the Ambulance and Patient Transport Industry Award 2020;

Application by the HSU and UWU to vary the Health Professionals and Support Services Award 2010;

Application by the Australian Salaried Medical Officers Federation (ASMOF) and the HSU to vary the Medical Practitioners Award 2020;

Application by the ANMF, UWU and HSU to vary the Nurses Award 2010;

Application by the AMESMA and the Shop, Distributive and Allied Employees Association (SDA) to vary the Pharmacy Industry Award 2010;

Application by the Australian Municipal, Administrative, Clerical and Services Union (ASU), the HSU and UWU to vary the Social, Community, Home Care and Disability Services Industry Award 2010; and

Application by the ASU, the HSU and the UWU to vary the Supported Employment Services Award 2010.

[8] In addition, Mr Alan Stokes lodged an application to vary the Ambulance and Patient Transport Industry Award 2020 which essentially mimicked the terms of the application made by the UWU and the HSU.

[9] The applications were subsequently allocated to this Full Bench for hearing and determination.

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[14] The ACTU, on behalf of the ANMF, the APESMA, the ASMOF, the ASU, the HSU, the SDA and the UWU, submitted that the purpose of the applications was to establish entitlements to paid pandemic leave for employees covered by the Health awards in each of the following circumstances:

the employee is required by government or medical authorities to self-isolate;

the employee is required by their employer to self-isolate;

the employee is required on the advice of a medical practitioner to self-isolate; and

the employee is prevented from working by measures taken by government or medical authorities in response to the COVID-19 Pandemic.

[15] The ACTU submitted that the unions' proposed eligibility criteria for paid pandemic leave were the same as for the unpaid pandemic leave provisions awarded in the April decision save that those provisions did not apply where the employer directed an employee to self-isolate, or where an employee was in self-isolation while awaiting the results of a COVID-19 test. The separate entitlement that was sought to be established for paid leave for the duration of any COVID-19 illness was directed at the circumstance where such an illness extended beyond a two-week period. The ACTU said that the proposed provisions, if awarded, would operate for a limited period but that it was intended that this period be extendable on application or as circumstances demanded it while the matter remained on foot.

[16] The ACTU submitted that the variations sought to the Health awards should be granted because:

the Health awards cover employees and employers in the health care and social assistance sectors, who are at a greater risk of transmission from and to other works and of spillover transmission in the community;

this elevated risk applies not just to those directly caring for patients but also for personal carers, cleaners, food servers and other support staff;

there is also a higher level of economic risk for employees in that they may be required to self-isolate for periods of up to 14 days at a time, with no income to support them, as their work places them at risk of infecting other vulnerable persons;

this elevated level of risk is associated with the essential nature of their work, which has necessarily continued throughout the pandemic, and has subjected employees to the higher risk of transmission of the virus and exposure to the virus;

the claim, if granted, would reduce the economic risk faced by employees should they be required to self-isolate, and provide health and social assistance workers with sufficient paid leave to ensure that they are not exposed to economic risk should they become unwell as a result of contracting the virus;

ensuring the economic security of self-isolating workers is part of the public health response to the COVID-19 pandemic, and the maintenance of a functioning health and social assistance sector is an overarching justification for paid pandemic leave; and

if the claim is granted, workers will be less likely to violate self-isolation requirements due to economic hardship and comply with public health best practice, and in that way the grant of the claim will contribute to the resilience of the health and care workforce.

[17] The ACTU submitted that the grant of the claim is necessary to achieve the modern awards objective in s 134(1). The merit of two weeks' pandemic leave was established in the April decision, and the principal additional issue was whether pandemic leave should be paid leave or not. The grant of the claim, the ACTU submitted, would be consistent with provisions in modern awards where economic risk associated with vicissitudes inherent to the nature of the work is allocated to protect an employee's interest, such as provisions concerning payment of employees in circumstances of inclement weather in the Building and Construction General On-site Award and the Wine Industry Award, other provisions for payment to employees where work cannot be performed in the Road Transport (Long Distance Operations) Award and the Textile, Clothing and Footwear and Associated Industries Award, and provisions for accident pay in other awards. The ACTU also pointed to provisions made for paid special/pandemic leave for public sector employees, including health sector employees, of the States and Territories. The ACTU's summary of the provisions made in this respect, which was not placed in contest, is reproduced in the Schedule to this decision.

[18] The ACTU and the applicant unions called evidence from a number of expert and employee witnesses. Their evidence is summarised below.

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[19] Professor MacIntyre is a public health physician, epidemiologist and academic, and holds the positions of Head of the Biosecurity Research Program and Professor of Global Biosecurity at the Kirby Institute for Infection and Immunity at the University of New South Wales. She was commissioned by the ACTU to prepare an expert's report concerning various aspects of the COVID-19 pandemic, including the particular issues arising in respect of the health and community and related services sectors and measures that might be taken to ameliorate known foreseeable issues for workers in those sectors.

[20] In her report, Professor MacIntyre summarised the main features of the COVID-19 pandemic as follows:

COVID-19 is spread by the respiratory route as well as by direct contact;

80% of infections are mild or asymptomatic, and 20% are severe;

the average time before seeking medical care is about one week, as symptoms can be mild;

hospitalised patients tend to be in hospital for an average of three weeks, and the virus can be detected in body fluids for 20-27 days;

the clinical syndrome includes acute respiratory syndrome and respiratory failure, and survival is less for people admitted to intensive care or ventilated;

cardiac complications, strokes, embolisms, arrhythmias and disease of other organ systems such as kidneys can occur;

the pandemic is unprecedented within current lifespans, and the global health, economic, social and geopolitical impacts are substantial and still unfolding;

Australia has a low case of fatality rates compared to other countries, and the rate is higher where patients exceed ICU bed capacity, with the age of the population also playing a role;

Australia has an ageing population, which means a large epidemic here would have a relatively higher impact;

there were 4 million cases globally by 11 May 2020, and the virus will remain a threat to every country whilst it is circulating in the human population, with most experts predicting we will live with the virus for 2-5 years;

the virus is difficult to control because (1) it is at its highest infectiousness in the two days prior to symptoms developing and on the first day of symptoms, and is also transmissible by people who never develop symptoms; and (2) there is growing evidence that the virus can be transmitted by the airborne route through fine respiratory aerosols; and

the virus can contaminate surfaces and areas distant from the COVID-19 patient, and there is some evidence of blood-borne spread.

[21] Professor MacIntyre said that the risk of outbreaks is magnified in closed, institutional settings such as health care, aged care and disability care facilities as well as prisons and detention centres. In health care, treatment of COVID-19 patients and those yet diagnosed with COVID-19 who present for care, place health workers at particular risk, and Professor MacIntyre gave the following examples:

in the UK, up to one in five health workers were infected with COVID-19 in at least two NHS trusts;

in the US, 16% of all infections were in health workers;

in Italy, 10% of infections were in health workers;

transmission from patients to health workers has been documented, with the highest risk being in workers who perform physical examination, are exposed to patients during nebulizer treatments and those who have longer exposure to infected patients;

the hospital environment may also be highly contaminated; and

other than direct health risks, the psychological stress for health workers has been shown to be severe, and healthcare worker suicide deaths have been reported worldwide, especially in heavily affected countries.

[22] Professor MacIntyre said that the impact of COVID-19 on health and care sectors is firstly, of increased risk of transmission for any workers within these work settings, not just those directly caring for patients, but for personal carers, cleaners, food servers and other support staff; and secondly increased risk of transmission to other workers; and finally, increased risk of spillover into the community. It is therefore in the best interests of society to ensure good control of COVID-19, workforce preparedness and heightened disease surveillance in these settings.

[23] It was observed by Professor MacIntyre that outbreaks have been reported in hospitals, long term care and aged care facilities, with a high rate of asymptomatic infection, meaning the extent of transmission may not be realised unless everyone within the facility is tested. Paramedics are especially at risk because they are the first to see a patient, before a diagnosis is made, and are within a small, enclosed space with the patient during transportation to hospital. In the disability and home care sector, carers have very close, personal contact with the people they care for, including cleaning soiled bedsheets, lifting, helping with toileting and bathing. Given the transmission of the virus from droplets, aerosols, direct contact, fomites and even faecal material, such workers are at high risk. Ignoring the needs of any of these sectors may result in explosive outbreaks, which in addition to the toll on patients, residents and staff will likely spill over into the community and make community control more challenging. The other setting which is high-risk is Aboriginal medical services, as demonstrated by the fact that during the pandemic of 2009, Aboriginal communities were severely affected and not well catered for.

[24] The "pillars" of epidemic control were identified by Professor MacIntyre as:

Identifying all cases of infection and isolating them. Testing is the means to identifying cases.

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[27] Dr Natasha Cortis is a Senior Research Fellow at the Social Policy Research Centre in the Faculty of Arts and Social Sciences at the University of New South Wales. Dr Cortis was commissioned, before the COVID-19 pandemic in Australia, by the HSU, the ASU and the UWU to design a survey and prepare a report about the experiences of disability workers and the challenges they confront in the context of the National Disability Insurance Scheme (NDIS). The survey was unconnected to the current proceedings, but the data collection period coincided with the period in which social distancing measures were introduced and implemented in Australia, with the result that many workers provided comments in the survey highlighting the issues they faced in the context of COVID-19. Dr Cortis prepared her report (in conjunction with Dr Georgia van Toorn) on the experiences of disability support workers in relation to COVID-19 on the basis of survey answers provided by 2,341 disability support workers.

[28] The key findings of Dr Cortis' report were as follows:

There is an urgent lack of PPE being supplied to staff and clients, and many workers feel their organisation's safety protocols have been inadequate in the context of COVID-19.

There are widespread perceptions that the disability workforce is being dangerously overlooked in pandemic response, and many workers are worried about the ongoing impacts of a lack of planning in their organisation and for the disability sector as a whole.

Workers have been particularly worried about day programs and community access activities remaining in operation; group homes remaining open to other workers delivering NDIS services and support to residents, along with visitors; and disruption to clients' routines and activities, which has created additional risks to client wellbeing and safety.

Staff are extremely anxious about the situation, and workforce issues and additional workloads have made it difficult to respond to heightened health and safety needs.

Some workers have lost jobs or shifts and are uncertain about the future of their work, and many expressed concerns about their inability to effectively self-isolate, and the financial impacts of doing so.

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[29] Alan McLean is a sessional senior lecturer in the Department of Health Care Management, College of Business, Government and Law at Flinders University. He was engaged by the UWU to prepare an expert's report concerning COVID-19 pandemic leave entitlements in the Ambulance and Patient Transport Industry Award 2020, which is based on research undertaken by him for his doctrinal thesis concerning ambulance infection prevention and control for patient and staff safety. In his report, Mr McLean noted that it is widely accepted that healthcare workers are at an increased risk of acquiring an infection at work as well as being vectors for transmitting such infections to patients, and that such infections occur in all healthcare settings including the ambulance prehospital care environment. In Australian acute care hospitals alone, approximately 200,000 patients a year acquire a healthcare acquired infection (HAI), which makes HAIs the most common preventable adverse event affecting patients in the Australian healthcare system. HAIs also present a risk to the health and safety of staff working in the healthcare system.

[30] Mr McLean referred to recent research on COVID-19 as indicating that it is predominantly a respiratory infection which is thought to be spread by contact, droplet and airborne routes. He observed that healthcare workers are at particular risk of acquiring an occupational infection during infectious diseases outbreaks such as COVID-19, and in some outbreaks healthcare workers have been the population most affected. Research supports the proposition that due to the environment in which paramedics work, they are at greater risk of contracting an occupationally acquired infection than other healthcare workers, particularly in a pandemic. The main factors that contribute to this risk are:

in the ambulance setting, the cramped spaces mean that paramedic are usually under one metre away from the patient, which is less than the recommended minimum physical distancing requirement of 1.5 metres for respiratory infections, and the same applies to stretchering patients;

paramedics provide invasive and complex care in uncontrolled environments, including the requirement to use aerosol-generating procedures in the ambulance, and dealing with extreme weather events, violent and aggressive people and environmental and physical hazards which may compromise PPE;

unprotected contact with infected people, in circumstances where paramedics are operating with insufficient information or patients have yet to be identified as having COVID-19 because they are asymptomatic, presymptomatic or otherwise;

paramedics perform clinical procedures in potentially contaminated environments that place them and their patients at a high risk of exposure to environmental pathogens as well as blood and other bodily fluids;

because paramedics usually have little information about a patient or their medical history prior to contact, full PPE may not be applied until the full situation is known, and advice as to the PPE and hygiene measures to be applied to patients with possible COVID-19 may be impracticable in the pre-hospital setting; and

access to hand hygiene facilities may be difficult outside of hospitals in emergency patient contact situations.

[31] In relation to patient transport staff, Mr McLean said that while they work in a more controlled environment in that their patients are generally pre-diagnosed and any treatment is usually already commenced, they are still exposed to many of the same risks as emergency paramedics. These include working in the confined space of an ambulance, inadequate PPE and the risk of encountering an undiagnosed asymptomatic or presymptomatic case.

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[32] Professor Simon Wilcock is a member of the ASMOF and is currently employed as the director of primary care and well-being services at MQ Health. MQ Health is a private non-profit integrated health science centre. It integrates the Macquarie University Hospital, the Faculty of Medicine and Health Sciences and clinical components of the Faculty of Human Sciences, and provides a wide range of clinical and research services. He has both a clinical and academic role. His clinical role is as a general physician for MQ Health.

[33] Professor Wilcock was responsible for setting up the first respiratory clinic, the Macquarie Park respiratory clinic, and the walk-in specialist emergency clinic. The clinics were set up in response to the perceived surge in COVID-19 cases being experienced from early March in New South Wales and around Australia. His evidence was that the Commonwealth Government provided funding to establish a number of clinics to provide testing for COVID-19. The testing was originally limited but is now generally available to anybody that considers they have symptoms. At the time of the hearing his evidence was that there had not been a positive COVID-19 result from the Ryde clinic since 9 April. He stated that this reflected that community incidents in this part of Sydney had dropped significantly.

[34] He stated they are testing up to 100 people a day at that clinic and have just extended the hours into the evening because of the demand. The number of positive cases was less than half a percent, and the low rate of positive results is reflected right around the country. The clinics are partially staffed by medical student volunteers who wear PPE. He considered the work in the clinic and the hospital made his risk of contracting COVID-19 equivalent to that of a health care worker in the public system. However he considered it to be a safe environment given the relevant mitigation of risks such as by training in PPE, appropriate cleaning, and COVID-19 policies and procedures around transmission-based precautions dealing with infection prevention and control. He also stated he had undertaken to interacting with his patients via telehealth. His evidence was that the potential surge in patient care related to the pandemic did not materialise and, at the present time, hospitals were still relatively quiet. MQ Health did not have a form of special or additional leave for COVID-19 related isolation.

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[36] Michael Van Emmerik works for the Westhaven Association as a disability support worker, and is a member of the ASU. He assists two residential supported independent living houses for adults who are 55 and 65 years of age and have physical and intellectual disabilities and mobility issues. He averages approximately 82 hours work per fortnight including sleepover shifts and awake night shifts. He stated he has not worked in this employment long enough to accrue leave entitlements of any significance, and that living without income for a period of isolation or illness for 14 or more days would be financially difficult for his family.

[37] Mr Van Emmerik gave evidence that, on 23 March 2020, he was requested at short notice to fill in for a colleague on a night shift. He stated he was contacted an hour before the shift commencement and requested to support a resident who had been taken to hospital earlier that afternoon. He was not provided with any detail about the resident's health or why they were being taken to hospital. He was required to go to the resident's house and pick up some items and take them to the hospital, and then he needed to support the resident with their feeding and changing of incontinence pads and general care. This was initially done by him as a support worker, and was then transitioned to the hospital staff. He returned home after this shift and visited his daughter, who had a newborn baby, and went about his usual business at home and in the community. The next day, he stated, he was contacted, requested not to attend his shift the next day and self-isolate for 24 hours as there was a possibility that the client he had assisted in hospital had symptoms of COVID-19. He was advised over the next two days to stay at home and self-isolate as there had been no results from the resident's test. He was told he would be paid for the shifts he was requested not to attend work whilst awaiting the test result.

[38] Mr Van Emmerik said that on the fourth day of self-isolation he read an email from the CEO which stated that a resident of Westhaven was critically ill in hospital with a positive COVID-19 diagnosis. It was subsequently confirmed to him that this was the patient he had been supporting. He said that he felt very distressed that he may have passed on the virus to his wife or his daughter and her newborn baby, and he was also uncertain as to whether he had a job. One of his sons left their home to stay with a friend during his period of isolation. His wife, who is employed by NSW Health, immediately notified her employer and was given paid leave. The group home in which he had been working was closed and the residents relocated to another house while being professionally cleaned and fumigated. Eventually after 14 days he was cleared to return to work.

[39] While he was off work, Mr Van Emmerik suffered significant financial difficulty. He had applied for Centrelink support as he was uncertain if he would be paid. However after he returned to work he was advised that his employer had decided to pay for the time he was required to spend off work.

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[45] Nicole Gigg works as a Pharmacy Assistant Grade 3 at Great Lakes Pharmacy, Tuncurry NSW, on a full-time basis, and is a member of the SDA. She is responsible for the inventory in the front of shop and the CPAP/Weight Loss clinics in the store. She provides customer service, taking/handing out prescriptions, cash register service, dealing with customer enquiries and triaging customers before passing them on to the pharmacist, requiring close contact with customers at all times. As part of her role she is in contact with the majority of stock items that enter the pharmacy including the dispensary. She said that due to the age of customers, customers still made cash purchases and they have had to change how staff engage with customers, particularly for vulnerable customers who want to bring in their scripts, to more home based delivery service. She said that while she is happy with the protective equipment made available to staff, the personal nature of some enquires means a 1.5 metre distance for a conversation is not always possible which puts the staff at risk. Customers regularly fail to follow social distancing rules and hygiene practices, particularly elderly customers. This includes coughing without covering mouths, coughing into hands then touching fixtures/counters, failure to sanitize hands, and gathering in groups. She said she had some customers who stopped practicing social distancing when in the store and need to be reminded of this as reported COVID-19 cases dropped.

[46] She said she is concerned she will catch COVID-19 and take it home, risking the lives of her family. She said that her mother is 71 and has type 2 diabetes and high blood pressure, and her brother is intellectually disabled with an extremely limited capacity to maintain good personal hygiene practices or follow social distancing rules. He cannot communicate and she is concerned she and her mother would not be able to identify COVID-19 symptoms. Her mother is her brother's full-time carer and if she fell ill, Ms Gigg would need to take leave to assist with his care.

[47] She said she has not had to take much personal leave during her employment. She said an entitlement to paid pandemic leave would assist if she had time off work due to exposure to the virus as her current accrued personal leave would be available to her if and when she needed to be able to assist in the care of her brother. Ms Gigg said the pharmacy had increased staff turnover in the last 12 months and a number of new employees would only have a small amount of accrued leave, and paid pandemic leave would assist them. She said one staff member had to access a large amount of their paid leave entitlements last year because of the bush fires, and pandemic leave would provide them some financial security if they were required to take time off work. She said that she would be more likely to get tested if she was symptomatic knowing that the staff around her would have access to paid leave if she was to test positive.

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[50] Rosemarie Bilyk is employed as a full-time Pharmacy Assistant Level 1 at Healthline Pharmacy Wynyard and is a member of the SDA. Her evidence was that prior to the pandemic she worked regular shifts from 10:30am to 6:30pm Monday to Friday, but the pandemic has had a detrimental impact on the business and resulted in her now only working 8:00am to 4:00pm on Thursday and Friday. She has been required to use her annual leave for the other 3 days per week, and her annual leave will run out soon. She said she has not been told if the business is eligible for JobKeeper, and if not, she will be in financial distress. Ms Bilyk said she has not been able to see her family due to social distancing and if she was able to, she would not because of the high risk of her contracting the virus and spreading it to them. She said her father is in his 70s and is a diabetic, her mother is in her 60s, and her brother lives with her parents.

[51] Ms Bilyk gave evidence that at work she is constantly dealing with customers, many of whom have symptoms. She said many customers are tourists that have poor English and sometimes these customers cough in front of her to demonstrate their symptoms because they cannot explain them clearly. She said there is a coronavirus testing centre near the pharmacy and she has had at least 2 customers come to the pharmacy to buy things immediately after they have been tested and told her they had been tested. She said she believes she will contract COVID-19 while working and has come to accept this. She said that if she had an entitlement to paid pandemic leave she would be able to not attend work if ill and not take the risk to infect others or her family. She said there are pressures to work to pay her bills and have an income. She said she has 2 weeks of accrued personal leave. She said she is not sure if she would get tested if she contracted symptoms because it would cause turmoil with other staff, particularly those who do not have enough leave or any leave entitlements, and she is afraid she would be bullied by other staff if the store closed due to her testing positive and other staff being financially disadvantaged as a result. She said she is concerned about other vulnerable staff, like a colleague who is a parent with a mortgage and what would happen to her if she lost her income. She said that, from talking to other pharmacy workers, there are many who share this same sentiment.

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[56] Kairstien Wilson is the Principal Legal Practitioner of AED Legal Centre (AED), which provides legal and systemic advocacy services in the areas of employment and education for people with disabilities and receives funding from the Federal Government. Ms Wilson stated that she has represented thousands of workers with disabilities over the course of her career, and that AED represents approximately 300 clients at any one time. Many of the clients have worked in Australian Disability Enterprises (ADEs). ADEs are organisations with charitable status that provide supported employment for people with disability. ADEs typically engage employees in tasks such as packaging, assembling, sewing, recycling, garden maintenance, cleaning and laundry services.

[57] Ms Wilson stated that people with disabilities have been identified by the Australian Government and World Health Organisation as a population more likely to be impacted by the COVID-19 pandemic. This population is more likely to be significantly impacted for reasons such as that people with disabilities suffer a higher rate from chronic health conditions including impaired respiratory function and immune system function, heart disease or diabetes. They are also more reliant on medical and social services such as at-home carers and the provision of private transport to essential services such as medical appointments. This group may also face barriers to accessing or understanding public health information and are more at risk of being socially isolated from the rest of society, and government mandated requirements for social distancing may exacerbate these risks.

[58] Ms Wilson stated that due to the nature of tasks and workplace environments at ADEs, such as packaging and assembling, it is not feasible for the vast majority of supported employees to work from home. As people with a disability have been identified as a particular at-risk group during the COVID-19 Pandemic, ADEs need to take proactive and strong measures to ensure the health and safety of their employees. Ms Wilson stated that these measures could include identifying individual employees who may be at an increased risk from the disease due to their disability and health conditions, and ensuring additional consideration is given to making sure they are not exposed to the virus at the workplace. Additionally, it is necessary to raise awareness of how the disruption in social services may affect supported employees, including supported employees facing barriers to transport to work, and to identify supported employees who are at risk of being socially isolated or suffering from mental health issues during the pandemic.

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[59] Robert Habel is employed as a Coordinator and Community Mental Health Support Worker by Uniting SA at Level 6 under the Social, Community, Home Care and Disability Services Industry Award 2010, and is a member of the ASU. Mr Habel is responsible for co-ordinating a team of five Community Support Workers and has a case load of 6 clients which he works with on achieving psycho-social goals and maintaining their health and routines. Mr Habel stated that Community Mental Health Support Workers in his program are vulnerable, in that they are required to support, and case manage, up to 13 clients each, working in people's homes and local communities. These often unpredictable locations lead to a higher risk of infections than if he worked with clients in office-based situations. He stated that his staff are in contact with the insides of client's homes, their children, other family members and friends. They visit a range of places that are also unpredictable in maintaining infection control such as GP clinics, hospitals and community centres where they mix with large groups of often vulnerable people due to their illnesses and ages.

[60] Mr Habel stated that many of the staff working in his sector are part-time and casual employees, who live pay check to pay check, and cannot afford to take time off without pay. Mr Habel stated that his employer has recently agreed to 14 days of paid Special Leave for staff affected by COVID-19. He stated that this announcement was welcomed by staff as it provided more security around the safety of staff, clients and the community. Mr Habel stated that extra paid pandemic leave will be important in providing staff with options to rest and isolate if unwell, without the fear of losing income, or the fear of pushing on when unwell and magnifying the possible spread of illness. He stated that if the claimed variation is made in the award, there will be less pressure on staff to come to work out of fear of losing income, or being forced to take recreation leave if sick leave has expired. Currently there is a temptation to work with mild symptoms which can lead to further infection to other staff and vulnerable clients.

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[64] Dr Andrew Cronin is a registered medical practitioner and a member of the ASMOF. He is currently employed as a primary healthcare and aeromedical retrieval physician at the Royal Flying Doctor Service (RFDS), Queensland section, and is covered by an enterprise agreement. He gave evidence that the RFDS has continued throughout the pandemic, but employees have received often unclear and frequently changing instructions. He stated that masks, gowns, overalls and gloves have been provided and social distancing required in waiting rooms, but there has been no triage of patients or taking of temperatures.

[65] Dr Cronin said that there have been no confirmed cases of COVID-19 amongst patients of RFDS's clinics. There has been one suspected contact amongst staff performing aeromedical retrieval work. This was a pilot who had flown on two night time retrievals and whose daughter was being tested for COVID-19. The pilot was instructed not to fly until he had been tested and had tested negative to COVID-19, and was placed on administrative leave. The doctor and nurses who had flown with this pilot were not required to self- isolate but were taken off-line. This was because the pilot was asymptomatic and was not yet a confirmed contact of someone with COVID-19. On approximately 30 March 2020, a colleague retrieved a patient on the New South Wales/Queensland border with upper respiratory symptoms. The patient was flown to a large regional hospital without precautions. Following this event, the doctor, nurse and pilot needed to be isolated. The doctor was taken offline and Dr Cronin had to cover his shifts until a negative test came back.

[66] Dr Cronin stated that he has frequently enquired about whether he would receive paid leave if he or a patient acquired COVID-19, or if he would receive workers' compensation, but has been unable to receive a response to his queries. He said that the pandemic has caused significant implications for the RFDS workforce and that any clinical staff who are aged over 60 with significant medical co-morbidities are not allowed to undertake retrievals on respiratory patients. This has resulted in him having to do more shifts. He stated that he recently worked in excess of 10 days over a two-week period to cover a colleague aged over 60.

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[86] The ACCI, ABI and the NSWBC submitted that the applications should not be granted for the following reasons:

the grant of the applications would apply a single entitlement to a wide array of relevantly different workplaces, in that although the applications were made in respect of a group of awards designated as "Health awards', they covered distinct industries and a variety of employee types with distinctive characteristics and working conditions, PPE, client contact and exposure, the availability of paid and unpaid leave, rates of pay, and the capacity of employers to provide the entitlements sought;

the central premise of the applications has not been made out in that the pandemic has not been as acutely felt in Australia as in other countries, there is no evidence that "health workers" have been exposed to, contracted or required to self-isolate because of COVID-19 to a greater degree than the general population, and the grant of the applications is not necessary to protect the resilience of the health system;

the scope of the claimed provisions are broader than can be justified by the premise of the unions' case, in that there is no connection sought to be drawn between the requirement for the leave and the performance of work, in that under the claim an employee is entitled to payment regardless of how an isolation or infection arises;

the current safety net is not deficient and the applications are not necessary, in that entitlements for employees under the Health awards including workers' compensation, paid and unpaid personal/carer's leave, annual leave and "Schedule X" unpaid pandemic leave are sufficient in the context of satisfying the modern awards objective; and

the grant of the application has the potential, particularly in certain contexts, to affect the viability of business and the model of using casual employees in labour hire.

[87] The ACCI, ABI and the NSWBC adduced evidence from three witnesses, which is summarised below.

[113]

[88] Sue Cudmore is the General Manager - Operations for Health Solutions Group Australia and has operational control of the Alliance Health Services Group and Recruitment Solutions Group. She has worked in the community and disability sector for 17 years and 15 of those years in executive operational and managerial roles in nursing and disability service. She said Health Solutions employs around 5,800 nurses, all as casuals, who are paid in accordance with the Nurses Award 2010. Alliance also employs 450 staff in community and disability services, primarily on a casual basis, under the Social, Community, Home Care and Disability Services Industry Award 2010 and the Alliance Home Care Services Enterprise Agreement.

[89] She outlined the protocols in place pre-COVID-19 to prevent the spread of infectious diseases and specific COVID-19 protocols that had been adopted. She said that the new COVID-19 procedures that were implemented follow similar protocols and risk assessments for any other infectious disease that staff would encounter during the course of their work. With COVID-19 a client may be so unwell that it is not appropriate that they remain under the care of Alliance and at that point would need to be transferred to a hospital. She said that Alliance had not had to deal with a client who was suspected of having COVID-19 or tested positive for COVID-19. She said that, assuming a person does not require hospitalisation because of the severity of their symptoms, Alliance's existing infection control management and PPE protocols would be able to suitably deal with the risk of infection, perhaps with the addition of a P2 mask which contains a filter. These masks are slightly larger than a surgical mask but wouldn't impact upon an employee performing their duties.

[90] Ms Cudmore said that at the time of the statement, Alliance had:

3 employees return from overseas who had to self-quarantine for 14 days per government guidelines;

3 employees were exposed to a person with known or suspected COVID-19 outside of work but did not present symptoms. They self-quarantined for 14 days per government guidelines and were not paid as they were casual employees; and

3 employees reported flu like symptoms, and were tested for COVID-19 and self-quarantined until test results received. The tests took between 3 and 7 days to be returned. The tests returned negative results and the employees returned to work. She said that health workers now have a fast-tracked test turnaround of 12 to 24 hours.

[91] At the time that Ms Cudmore made her witness statement, Health Solutions had one case of an unsuspected aged care resident testing as positive to COVID-19 which resulted in screening and contact tracing through the Department of Health which identified 8 staff as close contacts and requiring testing and self-isolation for 14 days. Of the 8 workers identified, as at 5 June 2020, 6 had been tested and are negative to COVID-19, 1 was awaiting results and 1 was waiting to be tested. None of Health Solutions' staff have been confirmed to have contracted COVID-19.

[92] Ms Cudmore said that if a paid pandemic leave entitlement was inserted into the Health awards, there would be no avenue to claim this money back from the NDIS or the client, so the cost would be borne by the business, and this could create significant strain on the financial resources of the business. She said that both Alliance and Health Solutions are already suffering economic difficulties because of the COVID-19 pandemic. Alliance has suffered a downturn in staff and are just reporting activity levels that are returning to pre-COVID-19 levels. Health Solutions continues to deliver significantly lower activity, however recent changes enabling private hospitals to recommence operating theatre activity has shown a small increase in demand. If Health Solutions' employees covered by a modern award could take paid pandemic leave, the organisation would need to renegotiate contracts to enable it to claim money back from host employers as this was an unforeseen potential expense.

[121]

[101] Viv Allanson is the CEO of Maroba Caring Communities, an aged care residential facility. She is also a Registered Nurse with experience in Midwifery, Renal /Transplantation and Dialysis. She has worked in the aged care sector for 28 years. She gave evidence that Maroba has detailed infection control procedures and always follows the guidance of medical professionals on the required period an employee must be absent from work following contracting or exposure to an infectious disease. She said all of Maroba's residents are in one of the high risk categories if they were to be infected with COVID-19, being either over 70, over 65 with chronic medical conditions, having compromised immune systems, or being Aboriginal or Torres Strait Islander persons over 50 years old. She said Maroba was proactive in introducing protocols to address COVID-19 risks and introduced the "Maroba COVID-19 Pandemic Risk Management Plan".

[102] She said that, at the time she made her witness statement, approximately 40 employees have been unable to attend work since the onset of COVID-19 due to Commonwealth Department of Health guidelines:

Prior to 25 May 2020, 35 were unable to attend work because they displayed symptoms relevant to COVID-19. From 26 May onwards, 8 employees were unable to attend work because they displayed symptoms relevant to COVID-19.

11 employees were required to take unpaid leave during their absence, and would have been required to absent themselves regardless of COVID-19 as they were unwell.

1 employee was absent because they were required to isolate after undertaking travel in their personal life and was required to be absent for 14 days. They were able to attend work after the quarantine period, and were required to take unpaid leave during their absence.

1 employee was unable to attend work because they were required as a result of government orders to isolate after coming into close contact with a suspected COVID-19 case outside of their employment. They were required to be absent 7 days and were able to attend work once they had a negative COVID-19 result and 7 days absence. The employee took paid leave during this absence.

No employees were required to isolate or to take leave as a result of a close contact with a suspected COVID-19 case made during their employment.

[103] She said Maroba is funded by Commonwealth subsidies and co-contributions from residents. The Aged Care Funding Instrument (ACFI) tool establishes the assessed care needs and funding is allocated accordingly. To determine funding, residents must undergo a range of complex medical assessments to understand their needs and funding is allocated accordingly. Residents only contribute an average of $51 a day to their care and remaining funding is allocated as per the ACFI, which ranges from a top up of $37.68 per day up to around $219.62 per day depending on complexity of the needs to the resident. Between these funding sources Maroba must find enough money for all overheads and outgoings, including staff wages. Although earnings fluctuate, staff cannot be shed as a certain level of staff is required to ensure standards of care are met, and most staff are permanent employees. Since COVID-19, Maroba's occupancy has dropped by 12 beds in order to create an isolation ward for residents who are required to self-isolate.

[104] Ms Allanson said that Maroba has an enterprise agreement and thus any award variations will not apply. She said that in the event that the claim was granted and it did apply to Maroba, having to pay any entitlement outside an employee's normal leave allocation which they had not been able to budget for, and adequately put money aside for, would place a further unfunded burden on rosters and direct care, and such entitlement would be extremely onerous on Maroba under current conditions.

[141]

[119] The ACTU provided further information about award coverage and the extent of collective bargaining in the sectors covered by the Health awards which was not the subject of any significant contest. This information may be summarised as follows:

2014 ABS Employee Earnings and Hours (EEH) Survey data showed that in the "Other store-based retailing sub-division" of the Retail Industry division, which includes "Pharmaceutical, Cosmetic and Toiletry Goods Retailing", 35.4% of employees were "award only" - that is, an award was the sole mechanism for setting pay and conditions;

the above sub-division aligned strongly with the coverage of the Pharmacy Industry Award 2020;

the EEH survey also showed that in the Health Care and Social Assistance Industry division, 22.3% of employees were "award only", but the figure was 20.4% in the "Hospitals" sub-division, 17.9% in the "Medical & other health care services" sub-division, 4.7% in the "Residential Care Services" sub-division and 50.9% in the "Social Assistance Services" sub-division;

the "Hospitals" sub-division suggested an overlap with the coverage of the Health Professionals and Support Services Award 2020, the Nurses Award 2010 and the Medical Practitioners Award 2020, relevant classes and groups in the "Medical & other health care services" sub-division aligned with the Health Professionals and Support Services Award 2020, the Nurses Award 2010, the Medical Practitioners Award 2020, the Aboriginal Community Controlled Health Services Award 2020 or the Ambulance and Patient Transport Industry Award 2020, and the "Residential Care Services" would involve employees covered by the Aged Care Award 2010, the Social, Community, Home Care and Disability Services Industry Award 2010 and the Nurses Award 2010; and

the number of "award only" employees was likely an underestimate of those who enjoyed award-derived conditions, since the Commission's 2014 Australian Workplace Relations Study identified that while only 24.6% of enterprises used awards to set pay exactly at the award rate, 51.2% used awards as a guide for doing so.

[120] The ACTU also offered the following general picture of award reliance based on the experience of its affiliates:

[160]

[123] Second, we are satisfied that there is a very real risk that employees who have no paid leave entitlements to access (whether because they cannot access their personal leave, or have exhausted their leave entitlements, or are engaged on a casual basis) in the event they are required to self-isolate, may not report any COVID-19-like symptoms or contact with someone suspected of having COVID-19 out of concern that they will suffer significant financial detriment. This presents a significant danger to infection control at workplaces covered by the Health awards - particularly in the aged care sector, where the statistics re have referred to earlier demonstrate a very high fatality rate amongst the COVID-19 cases which have occurred.

[124] Third, employers covered by the Health awards generally appear by this time to have successfully adopted work procedures and provided PPE such as to minimise the risk of infection in institutional settings. We observe that much of the evidence given by the ACTU employee witnesses dealt with the early phase of the pandemic in the March-April 2020 period, when employers and the community generally were struggling in a short space of time to prepare an adequate response to the pandemic. Thus much of the witness evidence reflected the confusion and initial inadequacy of PPE and infection-control procedures in this period. That evidence does not fairly represent the current position. We wish to emphasise that in making this observation, we do not intend any criticism of the evidentiary case advanced by the ACTU and the unions, which was comprehensive and assembled with impressive rapidity, but rather to underline that events during the pandemic have moved rapidly.

[125] Fourth, there appears to have been a widespread recognition amongst employers in the health and care sectors that where employees have been required to self-isolate in order to ensure that the workplace is protected from infection, it may be necessary to make special arrangements for the payment of such employees where they have no or insufficient leave entitlements to access. This may arise both from a consideration of fairness to employees and the necessity to protect the workplace from infection by ensuring that workers know they are financially protected if they report COVID-19 symptoms or exposure to a person suspected of having COVID-19 and are to self-isolate as a result. The information provided by the ACTU which is set out in the Schedule to this decision, demonstrates that the provision of various forms of paid pandemic leave has been adopted on a widespread basis in the State and Territory public sectors, including the health sector. The evidence of the ACTU/union witnesses demonstrates that, when forced to self-isolate, most were eventually paid by their employers. Ms Allanson, an employer witness in the aged care sector, gave evidence going to the intrinsic merit of the proposition that employees in the health and care sectors should, in the interests of fairness, be paid if they are required to self-isolate as follows:

[163]

[126] Fifth, as Ms Allanson's evidence quoted above indicates, the establishment of a paid pandemic leave provision would potentially cause significant financial difficulty for some employers, particularly those in the subsidised aged care sector and the NDIS-funded disability sector, because such employers will have little or no capacity to recover the cost.

[127] Having regard to these findings, we turn to the merits of the applications. We do not consider that there is a necessity to establish a paid pandemic leave entitlement for any employee who has actually contracted COVID-19 as a result of infection in the workplace and has to take time off work, since the employee (even if engaged on a casual basis) will be entitled to payment under the applicable workers' compensation scheme in that circumstance. Workers' compensation entitlements are a long-established feature of the safety net for employees in Australia, and there is no evidence before us that the various statutory workers' compensation schemes have dealt inadequately with any employee who has contracted COVID-19. In this connection, we note that in some jurisdictions there have been adjustments to workers compensation schemes in response to the pandemic; for example, the Workers' Compensation Act 1987 (NSW) has been amended so that for workers in certain areas of employment, including the health care sector and in disability and aged care facilities, it will be presumed that a worker who has tested positive for COVID-19 has contracted it in the workplace unless proven otherwise. We likewise do not consider that paid pandemic leave is justified for health and care workers who test positive for COVID-19 as a result of community transmission (that is, it is not contracted at or in connection with work) since, in that case, the position is no different from that of a worker in any other sector of employment.

[128] However, the position is distinguishable with respect to the situation where a health or care worker has to spend time off work because they are self-isolating as a result of potential contact with a suspected COVID-19 carrier in the course of employment or the display of potential COVID-19 symptoms. In neither case would workers' compensation entitlements apply if the worker ultimately tested negative for the virus. As was pointed out in the April decision, employees in that position might not be able to access personal carer's leave (even if they have an entitlement to it) without the agreement of their employer because they are not unfit to work because of personal illness. This is the "regulatory gap" referred to in the April decision. On the basis of the our earlier findings, we consider that this regulatory gap has greater significance for employees covered by the Health awards (excluding the Pharmacy Industry Award 2020 and the Supported Employment Services Award 2020 for the reasons earlier stated) because of the greater risk and likelihood that that they will be required to self-isolate and because of the critical importance of ensuring that employees self-isolate where necessary rather than not disclosing their position and continuing to work out of financial need. In that respect, we note that some categories of workers who are paid in accordance with the Aged Care Award 2010 and the Social, Community, Home Care and Disability Services Industry Award 2010 meet the definition of being low paid.

[129] On a fairly fine balance, we are not presently satisfied that the grant of the unions' applications is necessary to achieve the modern awards objective. In respect of the matters required to be taken into account under s 134(1), the most critical considerations are those in paragraphs (a) and (f). In respect of paragraph (a), we consider that the needs of the low paid have particular significance in respect of the necessity for employees under the Health awards to report circumstances which may require self-isolation rather than avoiding doing this for reasons of financial need. In relation to paragraph (f), we have placed significant weight upon the potential non-recoverable costs to employers in the aged care and disability sectors of a new paid pandemic leave provision. The other matters in s 134(1) appear to us to be of limited relevance. The overriding factor we have taken into account is that, in the current circumstances, the degree of success in controlling the COVID-19 pandemic means that the elevated potential risk to health and care workers of actual or suspected exposure to infection has not manifested itself in actuality.

[130] However, we will not dismiss the applications at this time. As Professor MacIntyre emphasised, the position in respect of the COVID-19 pandemic has the potential to radically change in a matter of weeks. The significant and rapid reversal of positive trends in countries such as the United States and Israel is demonstrative of this. Events which are currently occurring in Victoria are disturbing and, although the recent increase in cases has been the result of incidences of community transmission, the most recent information to which we have earlier referred suggests that there may have been some spread of infection into the hospital system. We think the appropriate course is to stand the matter over on the basis that it may be relisted on request as short notice if there continues to be a significant deterioration of the position. We will ourselves monitor events and we may relist the matter of our own initiative if we consider it necessary. In the event that the matter is relisted, the parties may rely on the findings we have already made unless these have been overtaken by further events.

[131] We indicate that we may be prepared if necessary to grant the application on the following bases:

there is evidence that the elevated risk to which we have earlier referred is manifesting itself amongst health and care workers in a discernible way;

the leave entitlement is for workers who are required to self-isolate because they display COVID-19 symptoms or have come into contact with a person suspected of having contracted COVID-19;

the leave entitlement is limited to up to two weeks' paid leave on each occasion of self-isolation;

the entitlement is targeted at workers who are not working at home or working remotely and who are covered by the Aboriginal Community Controlled Health Services Award 2020, the Aged Care Award 2010, the Ambulance and Patience Transport Industry Award 2020, the Health Professionals and Support Services Award 2020, the Medical Practitioners Award 2020, the Nurses Award 2010 or the Social, Community, Home Care and Disability Services Industry Award 2010; and

we would only apply the leave entitlement to casual employees if there was a demonstrated threat to the resilience of the health care system and the systems for the care of the aged and the disabled.

[132] For the reasons stated, the matter is adjourned.

Health Sector Awards - Pandemic Leave [2020] FWCFB 3561 (8 July 2020)

At a glance

Court

Decision date

Source

Judgment (231 paragraphs)

Health Sector Awards - Pandemic Leave [2020] FWCFB 3561 (8 July 2020)

Legislation Cited (4)