A recent decision of the Fair Work Commission has shone a light on a matter that a number of employers have been grappling with.
If there is a public health order/direction in place which requires an employee to be vaccinated for COVID-19 in order to perform work, can an employee access their accrued personal/carer’s leave if they are unable to work due to being unvaccinated?
This was the situation in the case of Mrs Hannah Jane Wilkinson v Eastern Health  FWC 260.
Background to the case
Mrs Wilkinson was employed as a healthcare worker by Eastern Health in Victoria, pursuant to an enterprise agreement covering her workplace.
A public health direction was made by the Victorian Government which meant that healthcare workers had to be vaccinated by 15 October 2021 in order to attend a healthcare facility.
On 15 October 2021, Mrs Wilkinson provided Eastern Health with a medical certificate certifying that she was unfit for work for the period 15 October 2021 to 12 November 2021.
On 19 October 2021, Mrs Wilkinson was informed by Eastern Health that as she did not provide the evidence of vaccination or a vaccination booking by 15 October 2021, she would be suspended and consequently, she was not entitled to paid personal leave.
On 21 October 2021, Mrs Wilkinson provided Eastern Health with confirmation that she had made a booking to receive a COVID-19 vaccination for 27 October 2021. Eastern Health confirmed that in light of this, Mrs Wilkinson was no longer suspended, and she would be paid her accrued personal leave.
Ms Wilkinson subsequently did not attend her vaccination appointment, did not provide evidence that she had received a vaccination and instead provided Eastern Health with further medical certificates showing she was unfit for work for the period until 10 December 2021.
Eastern Health refused to pay Mrs Wilkinson further her accrued personal leave.
Mrs Wilkinson subsequently lodged a dispute with the Fair Work Commission under the terms of Eastern Health’s enterprise agreement seeking payment of her personal leave.
What did the FWC decide?
The Fair Work Commission considered the terms of the enterprise agreement and determined that the entitlement to personal leave was an entitlement to be paid based on the number of ordinary hours the employee would have worked on the day or days on which the leave was taken. The Commission went on to find that because Mrs Wilkinson was not “ready, willing or able to attend work to work ordinary hours” because of the terms of the health direction, it followed that she was not entitled to personal leave in the relevant period as there were no ordinary hours that she would have worked.
The fact that she was also entitled to be absent from work due to illness did not change the fact that there were no ordinary hours that she would have worked had she not been unfit for work.
Usefully, the Fair Work Commission confirmed that the entitlement to personal leave in the National Employment Standards (found at s.99 of the Fair Work Act 2009 (Cth)) operated in the same way as to the entitlement under the enterprise agreement. The Commission said this:
“ ….Section 99 of the Act provides that if, in accordance with Subdivision A of Division 7 in Part 2-2 of the Act, an employee takes a period of paid personal/carer’s leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period. It seems to me that clause 61.2(a) of the Agreement is to the same effect as s 99 in that it provides for payment, in effect at the employee’s base rate of pay, for the employee’s ordinary hours of work in the period of absence. In my view the words “ordinary hours of work in the period” in s 99 condition the payment to the number of ordinary hours the employee would have worked but for the absence in the relevant period claimed. If an employer cannot lawfully require an employee to work in a period because it cannot permit the employee to work because of an operative direction or order, the employee has no ordinary hours in that period. Similarly, as Ms Wilkinson was not ready, willing or able to perform work in accordance with the externally imposed condition in the relevant period she had no ordinary hours in that period.”
Need further help?
If you need further help on any of the matters raised in this article please contact EI Legal.