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Unpaid pandemic leave

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Employee / workerEmployer

This information is only relevant to employers and employees in the WA state industrial relations system – sole traders, unincorporated partnerships, unincorporated trusts and some incorporated or not for profit organisations.  Find out more on the Guide to who is in the WA state system page.

If you operate or are employed by a Pty Ltd business – you can find information on this topic on the Fair Work Ombudsman website.

New provisions have been implemented through the COVID-19 General Order issued by the Western Australian Industrial Relations Commission to assist private sector employers and employees address the impacts of the COVID-19 coronavirus pandemic on their workplaces. 

These new provisions apply to state system employers and employees, including those working under a WA award and award free employees.  The new provisions are effective from 14 April 2020 and apply until 31 March 2021 (unless extended).

The unpaid pandemic leave provisions in the COVID-19 General Order are:

  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. [Please note, the situation may be different for long service leave entitlements. For more information, see below.]
     
  5. Such leave:
    1. is available in full immediately rather than accruing progressively during any period of service;
    2. will be available until 31 March 2021 (unless extended by further variation depending on the duration of the COVID-19 pandemic);
    3. will be available to full time, part time and casual employees (it is not pro rata); and
    4. must start before 31 March 2021, 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.

Information on the annual leave flexibilities in the COVID-19 General Order is on the Annual Leave page and the Employment impacted by the COVID-19 Coronavirus page. 

Unpaid pandemic leave and long service leave accrual

To be entitled to long service leave under the Long Service Leave Act 1958, an employee’s employment with their employer must be continuous. The amount of long service leave is determined by the employee’s period of continuous employment.

Under the Long Service Leave Act, there are some types of absences that do not break an employee’s continuous employment, but do not count towards an employee’s period of employment for the purposes of accruing long service leave. 

For employees in the state system, the effect of unpaid pandemic leave on long service leave accrual will depend on whether a WA award applies, and if so, the nature of any long service leave provisions in the applicable award.  More detail is provided below.

Award free employees

Unpaid pandemic leave taken by private sector award free employees in accordance with the COVID-19 General Order provisions will not count towards an employee’s period of employment for accruing long service leave but will not break the employee’s continuous employment.

WA award employees

For private sector WA award employees, whether unpaid pandemic leave will count towards an employee’s period of continuous employment for accruing long service leave depends on the provisions of the relevant WA award.

  • If the WA award contains a long service leave clause which specifies that an employee is entitled to long service leave in accordance with the Long Service Leave Act, the Long Service Leave General Order (which applied to WA award employees prior to 2006), or some other arrangement, then a period of unpaid pandemic leave will count towards an employee’s period of employment for accruing long service leave.
  • If the relevant WA award does not contain a long service leave clause, then a period of unpaid pandemic leave will not count towards an employee’s period of employment for accruing long service leave but will not break the employee’s continuous employment.

All WA awards are available on the Western Australian Industrial Relations Commission website at www.wairc.wa.gov.au or you can contact Wageline on 1300 655 266 for award specific information.

 

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