Unpaid pandemic leave

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WA image icon 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.

Current unpaid pandemic leave provisions

An entitlement to two weeks’ unpaid pandemic leave has been re-introduced for private sector state system employees.

The unpaid pandemic leave provisions were implemented through the COVID-19 General Order issued by the Western Australian Industrial Relations Commission on 25 March 2022. The General Order applies until 31 January 2023, unless extended.

The COVID-19 General Order applies to private sector award free employees and private sector employees covered by WA awards or registered industrial agreements. Where a WA award or industrial agreement contains a term provided for in the General Order that is more beneficial to an employee, then the more beneficial term will apply. Otherwise, where there is conflict between the terms of a WA award or industrial agreement and the General Order, the terms of the General Order will apply.

The unpaid pandemic leave provisions are:

  1. Subject to subclauses (2) and (3), an employee is entitled to take up to two weeks’ unpaid pandemic 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:
    1. is available in full immediately rather than accruing progressively during any period of service;
    2. will be available until 31 January 2023 (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 January 2023, 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. Those caring for others who are compelled to self-isolate are not entitled to unpaid pandemic leave.

Comprehensive information for state system employers and employees on COVID-19 related topics is available on the Employment Impacted by COVID-19 page.

Previous unpaid pandemic leave provisions

In April 2020, the Western Australian Industrial Relations Commission issued the COVID-19 Flexible Leave Arrangements General Order to assist private sector employers and employees address the impacts of the COVID-19 coronavirus pandemic on their workplaces. 

The COVID-19 Flexible Leave Arrangements General Order provided for unpaid pandemic leave and annual leave flexibilities for private sector state system employees.

The COVID-19 Flexible Leave Arrangements General Order ceased to have effect on 31 March 2021. 

Unpaid pandemic leave and leave entitlements (other than long service leave)

Unpaid pandemic leave taken in accordance with either the previous COVID-19 Flexible Leave Arrangements General Order or the current COVID-19 General Order does not affect any other paid or unpaid leave entitlement of an employee and counts as service for the purposes of entitlements.

Both of the General Orders override any WA award clause that is less beneficial. This means that even if an applicable WA award states that unpaid leave does not count as service, unpaid leave taken in accordance with the current COVID-19 General Order or the previous COVID-19 Flexible Leave Arrangements General Order will be counted as service.

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 on long service leave accrual of unpaid pandemic leave taken in accordance with the previous COVID-19 Flexible Leave Arrangements General Order or the current COVID-19 General Order 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.

Unpaid leave taken for a COVID-19 related reason which was NOT taken in accordance with one of the General Orders providing for unpaid pandemic leave is treated the same way as other unpaid leave – that is, it will not count towards an employee’s period of continuous employment for accruing long service leave, but will not break the employee’s continuous employment.

It should be noted that if an employee was on unpaid leave, whether taken in accordance with a General Order or not, and received a payment such as the WA Government’s COVID-19 Test Isolation Payment or the Federal Government’s Pandemic Leave Disaster Payment, then the period for which the employee received payment will count towards the employee’s period of continuous employment.

Award free employees

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

WA award employees

For private sector WA award employees, whether unpaid pandemic leave taken in accordance with the current COVID-19 General Order or the previous COVID-19 Flexible Leave Arrangements General Order counts 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 does 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 does not count towards an employee’s period of employment for accruing long service leave but did not break the employee’s continuous employment.

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

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