commissioner’s determination 3.1: employment...

8 April 2020

Erma RanieriCommissioner for Public Sector Employment Office of the Commissioner for Public Sector Employment

Dear Ms Ranieri

Re: Updated Supplementary Determination for COVID-19 for pubic sector workers

The PSA acknowledges receipt of a copy of the revised Commissioner’s Determination 3.1: EmploymentConditions – Hours of Work, Overtime – Hours of Work, Overtime, Leave: Supplementary Provisions for COVID-19 (“the Supplementary Determination).

We note the copy of the proposed Supplementary Determination was provided for information and with advice that it “will be published tomorrow (8 April 2020)”.

We note that the PSA was not invited to contribute to the proposed Determination, and that it was provided to us only a matter of hours before your intention to publish it. Irrespective of the current circumstances, this is not satisfactory for the constructive conduct of industrial relations.

While we welcome some elements of the proposed Determination we have concerns about other elements.

We stand by our commitment to facilitate and support arrangements that serve to maximise the protection of the community, and the continued provision of public services for our community in these difficult and changing times.

We provide the following contribution to the proposed Determination.

Elements of the proposed Determination are industrially unsound and inconsistent with terms of the Public Sector Act 1999 and the Fair Work Act 1994.

The proposed Determination is characterised by creative interpretations of legislation, and wording that is loose and inconsistent.

Elements of the proposed Determination are misleading and probably beyond the power of the Commissioner.

2

The proposed Determination is inconsistent with the provisions of the Public Sector Act including but not limited to the following:

Section 16 (2) (b) because it would be a determination which purports to determine conditions of employment which include remuneration.

Section 73 because it is a determination affecting remuneration and conditions of employment which are subject to an award and enterprise agreement in force under the Fair Work Act.

It misrepresents Schedule 1 Part 4 clause (5) (3) because:

▪ that subclause does not refer to, for example, three business days notice for directing an employee to take annual/recreation leave. The paragraph on page 7 of 108 headed “Directing employees to take annual/recreation leave” clearly states that it does.

◦ That subclause does not say that employees may elect to take annual leave at half pay, and itdoes not say that the first half must be on full pay and the second half on leave without pay.

◦ The terms in the Public Sector Act (at Schedule 1 Part 6, section 9) that provide for cashing out of long service leave simply do not apply to recreation/annual leave.

The proposed Determination is inconsistent with provisions of the Fair Work Act including but not limited to Schedule 4, Section 3(a); Section 4(2); and Section 5. This inconsistency breaches the legislated minimum standard for annual leave.

The proposed Determination is inconsistent with provisions of the South Australian Modern Public SectorEnterprise Agreement: Salaried 2017 (SAMPSEAS) and the S.A. Public Sector Salaried Employees Interim Award.

Clause 12 of SAMPSEAS states that an express basis upon which the agreement was made was the remuneration and conditions contained in CPSE Determination 3.1. The “express basis” can only be on the terms that existed at the time the SAMPSEAS was made.

It is therefore not possible to unilaterally change Determination 3.1, especially when taking into account Section 73 of the PS Act. Clause 35.1.2 of the SAMPSEAS provides recourse for a breach of this clause.

Determination 3.1 at page 16 of 73 at Section C Recreation Leave, section 2 – Taking recreationleave states that an agency head may direct an employee to take recreation leave only with at least two weeks’ notice before the period of leave commences.

This two week notice period is consistent with subclause 7.3.1.2 of the S.A. Public Sector Salaried Employees Interim Award.

The PSA’s position is that in the interests of community safety access to special leave for COVID-19 related matters should an entitlement that is readily available, and should not have many of the limitations contained in this proposed Determination.

The proposed Determination does not deal with employees who are pregnant, and does not adequately deal with employees who are in the category of vulnerable people, or situations arising from employees’ children not being able to attend school or child-care as a result of COVID-19 related circumstances.

3

In many circumstances, the proposed Determination does not emphasise sufficiently the requirement for an agency to facilitate flexible work arrangements or alternative working arrangements. Rather, the emphasis is on the employee being required to use their own leave. This will be treated as a first option in some agencies.

We attach a copy of the proposed Determination with our comments included in the margins, and will notrehearse them further here.

We request that you consider the content of the proposed Determination further before it is published.

The PSA contact person in relation to this matter is PSA Manager, Policy and Strategy Austin White, by phone on 8205 3295 or by email to [email protected].

Yours sincerely

Nev KitchinGeneral Secretary

mailto:[email protected]

DETERMINATION OF THE COMMISSIONER

FOR PUBLIC SECTOR EMPLOYMENT

3.1: Employment Conditions – Hours of Work, Overtime and Leave: Supplementary Provisions for COVID-19

Determination 3.1: Employment Conditions – Hours of Work, Overtime and Leave: Supplementary Provisions for COVID-19 Date of Operation: 6 April 2020Review Date: This document will be subject to revision as circumstances develop.

This determination is issued in accordance with Commissioner for Public Sector Employment powers under section 14(1)(b) of the Public Sector Act 2009. It has immediate effect and will remain in place until such time as it is revoked. This determination has been issued as a result of the declaration of a Public Health Emergencyon 16 March 2020, and a subsequent declaration of a Major Emergency on 22 March 2020and supports efforts to minimise and prevent the spread of COVID-19 while still delivering essential services to the community.

For the purposes of managing and minimising the impact of COVID-19, this determination over-rides existing leave and travel provisions contained within any current Commissioner’s Determinations.

Office of the Commissioner for Public Sector Employment 08/04/2020 11:45

3.1: Employment Conditions – Hours of Work, Overtime and Leave: Supplementary Provisions for COVID-19 Page 1 of 10 -1

Public Service Assoc...07/04/2020 16:31

This ignores obligations under s73 of PS Act - re operation of the Fair Work Act in relation to Awards and Agreements.


Refer above

Summary of additional/revised supplementary provisions

Provision Existing Supplementary Provisions

Special Leave With Pay for COVID-19

Not Applicable

New provision added for COVID-19 of 15 days per service year. This is in addition to current provisions within the existing CD3.1.

Medical Certificates for COVID-19 absences

Required after continuous three (3) day absence

Not required while Major Emergency declaration remains active. CEs may still opt to request a medical certificate or other evidentiary provision in specific, explicit circumstances.Medical clearance may be required prior to return to work.

Sick/Carer’s Leave

Up to 10 days of sick/carer’s leave entitlement per service year

No cap on accessing sick/carer’s leave entitlements per service year.

Direction to take annual/recreation leave

At least two (2) weeks’ notice to staff with more than 24 months of accrual

At least three (3) days’ notice to staff.Ability to direct for more than 12 monthsof accrual.

Access to annual/recreation leave at half pay

Not Applicable

New provision to access annual/recreation leave entitlements at half pay. Will be treated as per Long Service Leave at half pay.

Creation of new special leave with pay category for COVID-19

In response to the declaration on 16 March 2020 of a public health emergency relating to the COVID-19 pandemic, and the subsequent declaration of a Major Emergency on 22 March 2020 a new category of special leave with pay of up to 15 days will be available to support absences from the worksite or workplace for COVID-19 situations. This special leave with pay is not considered to be part of the current 15 days special leave with pay, as currently detailed in the Commissioner’s Determination 3.1: Employment Conditions – Hours of Work, Overtime and Leave (CD3.1).

Unless explicitly stated, any reference to special leave with pay within this Determination is Special Leave with Pay for COVID-19.

Special leave with pay is applied for, taken and recorded in hours. Special leave with pay applies to part time employees on a pro rata basis in that the amount of days available would be proportionate to the full-time equivalent (FTE) of that employee. Special leave with pay is only paid for an employee’s ordinary working day.




Remove ‘per service year’


This is below the minimum standard in the Fair Work Act 1994 and cannot be done. (contravenes PS Act 73)


This has no benefit to an employee. Employees are entitled to be remunerated.

CONTENTS

Summary of additional/revised supplementary provisions.......................2

Creation of new special leave with pay category for COVID-19.................2

Prevention and Minimisation..................................................................4

Alternate working arrangements...................................................................................................4

Flexible working arrangements.....................................................................................................4

Requirement on employee to self-report.......................................................................................4

Workplace shutdown for deep-cleaning........................................................................................4

Temporary cessation of service (full or partial), or physical workplace closure for COVID-19 purposes (this provision does not apply for deep-cleaning purposes............................................4

Overseas and interstate travel......................................................................................................5

Returning from travelling overseas or interstate for business reasons..........................................5

Returning from travelling overseas or interstate for personal reasons..........................................5

Contact from the Communicable Diseases Control Branch of SA Health.....................................5

Other Leave Arrangements.....................................................................6

Absence due to illness (including COVID-19 illness)....................................................................6

Medical Certificates during the Major Emergency declaration......................................................6

Vulnerable employees..................................................................................................................6

Living with a vulnerable family member........................................................................................6

Carer’s Leave...............................................................................................................................7

Additional options for caring purposes..........................................................................................7

Employees impacted by child-care or school closures..................................................................7

Directing employees to take annual/recreation leave....................................................................7

Payment of annual/recreation leave entitlements.........................................................................8

Payment in lieu of annual/recreation or long service leave...........................................................8




Contents should be at the start of the document

Prevention and Minimisation

Alternate working arrangements

Each agency, in accordance with its business continuity plan, is to ensure it continues to deliver essential services during the COVID-19 pandemic, taking into account any protection measures recommended by SA Health and/or the SA/Australian Government.

Agencies should consider previously approved leave and may revoke the approval if the employee is critical to ongoing service delivery.

Employees who remain well should continue to undertake duties either at their usual workplace, byutilising flexible working arrangements at home, or at an alternate location unless they are on an approved period of leave.

Flexible working arrangements

Agencies will continue to monitor and apply guidance from SA Health in relation to personal hygiene and social distancing. Agencies must actively consider and must implement ‘work from home’ arrangements for populations within their workforce who are able to do so, within the constraints of maintaining effective operations and essential services.

Requirement on employee to self-report

An employee must self-report to their agency if they are self-isolating and the reason for self-isolating if they:

Are unwell and exhibiting COVID-19 symptoms; Have had close contact with a confirmed case of COVID-19; Have been advised or directed to self-isolate or be tested for COVID-19; Have been tested and are awaiting test results; Have been tested positive to COVID-19; or Are being treated for COVID-19.

Employees must understand and have access to the processes required by the agency to enable them to comply with self-reporting obligations.

Workplace shutdown for deep-cleaning

In the event the Government or Chief Public Health Officer directs a workplace to shut down for a short period of time, for example 48 hours to undertake deep-cleaning, and where it is not practicable and appropriate to work from home or from another work location, the employee will be deemed ‘absent on duty’.

Temporary cessation of service (full or partial), or physical workplace closure

for COVID-19 purposes (this provision does not apply for deep-cleaning purposes)

In the event the Government or Chief Executive determines that a service should temporarily cease (full or partial), or where a workplace physically closes, where practicable and appropriate, the employee will be given access to flexible working arrangements or transferred to alternative duties.

Where the above is not practicable and appropriate, the employee will be provided with special leave with pay for COVID-19.




Should include ‘unless a vulnerable worker’


On what basis and authority would this determination be made, and how would it be communicated to employees and unions?

If special leave with pay for COVID-19 is exhausted, the employee should access their own leave entitlements.

Overseas and interstate travel

The below travel provisions relate to:

1. overseas travel that commenced after the declaration by the Australian Government relating to self-isolation requirements from 12.01am on Monday 16 March 2020; and

2. interstate travel after the declaration by the South Australian Government relating to self-isolation requirements from 22 March 2020, enforced by SA Police from 4.00pm 24 March 2020.

Any subsequent travel restrictions or bans put in place by the Australian Government, South Australian Government, or State Coordinator will also apply to the following provisions.

Returning from travelling overseas or interstate for business reasons

Where an employee is required to undertake self-isolation as a result of business travel, and SouthAustralian Government or Australian Government directions were issued post travel commencement, but otherwise the employee remains well, access to flexible working arrangements (i.e. working from home arrangements) will be explored and implemented in the first instance. Where it is not practicable and appropriate to work from home, access to special leave with pay for COVID-19 will be provided.

If the employee becomes unwell while self-isolating, the absence will be managed in accordance with the agency’s existing sick leave processes.

Returning from travelling overseas or interstate for personal reasons

Any employee who commenced travelling overseas or interstate for personal reasons prior to the direction from the Australian Government on 15 March 2020 for mandatory self-isolation for 14 days on return to Australia, and where it is not practicable and appropriate to work from home, will be placed on special leave with pay for COVID-19 for the period of self-isolation.

Employees with planned overseas or interstate travel commencing after the implementation of any relevant government direction must adhere to the relevant travel requirements, and factor in an additional 14-day absence for self-isolation purposes on their return to Australia/South Australia. Inthis specific circumstance, the employee is not entitled to special leave with pay. If they still chooseto travel, the employee is either required to work from home where this is practicable and appropriate for the period of self-isolation, or use their individual leave entitlements (recreation, long service, retention leave), or flexi balances, or be placed on special leave without pay.

If the employee becomes unwell during the self-isolation period, the absence will be managed in accordance with the agency’s existing sick leave processes.

Contact from the Communicable Diseases Control Branch of SA Health

Where an employee is contacted by SA Health as part of contact tracing procedures, and they are subsequently required to self-isolate and it is not practicable and appropriate to work from home, special leave with pay will be approved for the required period of self-isolation.

If the employee subsequently tests positive for COVID-19, the absence will be managed in accordance with the agency’s sick leave processes.




The PSA questions the legal basis for this. The Government is obligated to find duties for the employee. The employee is entitled to remuneration.


In the interests of community safety, employees should be entitled to COVID-19 leave to ensure they do not return to the workplace sick.



Other Leave Arrangements

Absence due to illness (including COVID-19 illness)

If an employee is absent from work due to illness, current sick leave entitlements and conditions apply. In instances where sick leave is exhausted and the employee has tested positive for COVID-19 and is unable to work, Chief Executives may grant special leave with pay on a case-by-case basis.

Medical Certificates during the Major Emergency declaration

It is recognised that the current obligation to furnish a medical certificate for a continuous absence of three (3) days or more may place additional, unnecessary burden on the health system.

A medical certificate will not be required to access sick leave entitlements for COVID-19 related absences while the Major Emergency declaration remains active, unless expressly required by the Chief Executive.

Chief Executives may additionally communicate a requirement to gain medical clearance for particular employees providing frontline services, prior to their return to work.

Vulnerable employees

National Cabinet’s strong advice is for self-isolation at home to the maximum extent practicable for Australians:

• with an underlying health condition (e.g. a compromised immune system, for example due to cancer, or a chronic medical condition which places them at serious risk); OR

• are aged

– over 50 as an Aboriginal or Torres Strait Islander person;

– over 65 with a chronic medical condition; or

– over 70.

Agencies are to enable this wherever possible and provide where appropriate access to work from home arrangements. Where it is not practicable and appropriate to work from home, COVID-19 special leave with pay will be applied. If COVID-19 special leave with pay is exhausted, access to the employee’s own leave entitlements will be provided to enable the employee to stay at home.

If a vulnerable employee wishes to remain in the workplace they may do so, provided the agency has appropriately assessed any risks and is comfortable they can ensure appropriate observance of any government protocols relating to social distancing.

Where employees are delivering essential services and agencies need to keep the employees engaged in the workforce to maintain the delivery of services, agencies must undertake a risk assessment and ensure they are mitigating the risk to employees as far as is reasonably practicable.

Living with a vulnerable family member

If an employee is living with a vulnerable family member and wishes to remain away from the workplace, agencies will offer access to flexible working arrangements where possible. Where it is not practicable and appropriate to offer flexible working arrangements, the employee will be entitled to access sick/carer’s leave entitlements. On exhaustion of sick leave, the employee should be directed to take any accrued annual/recreation leave in excess of 12 months’ worth of accrual.






Remove the COVID-19 specification in this paragraph.If the intention is to remove requirement for medical certificates only for COVID absences, remove the first paragraph of this section.


Additional caveat should be placed to include any updated advice, similar to travel restrictions caveat above.


If initial COVID SL exhausted they should entitled to more COVID leave, not use their own leave. What happens when leave is exhausted? Put themselves at risk to provide for their family?


No vulnerable employee should be required to attend the workplace if they choose not to.Who conducts the risk assessment and is the employee involved in that assessment?

If recreation leave does not exceed 12 months’ of accrual, special leave with pay for COVID-19 willbe provided.

If the vulnerable family member becomes unwell, the employee may access the carer’s leave provisions below.

Carer’s Leave

Chief Executives will approve applications to access accrued sick/carer’s leave for the purpose of caring for a family member for the full duration of any required period of isolation, or for the full duration of the dependent or household member’s illness relating to COVID-19. This is an uncapped entitlement to access accrued sick/carer’s, rather than being restricted to taking a periodof up 10 days’ sick/carer’s leave per year.

Additional options for caring purposes

For the purposes of leave for caring purposes, the following are to be regarded as members of a person’s family:

spouse (including a de facto spouse or a former spouse or de facto spouse); child or stepchild; parent or parent in-law; any other member of the person’s household; grandparent or grandchild; or any other person who is dependent on the person’s care.

Employees who request to work from home whilst providing caring responsibilities will be supported to do so where practicable and appropriate. If it is not practicable and appropriate to work from home, access to sick/carer’s leave is to be provided.

If the employee has exhausted all of their sick/carer’s leave entitlements, the employee will be provided with special leave with pay for COVID-19.

Employees impacted by child-care or school closures

Employees who have care arrangements impacted by a school or child-care closure will be provided with access to flexible working arrangements wherever possible. Where not practicable orappropriate to offer flexible working arrangements, access will be provided to existing own leave entitlements, including accrued sick/carer’s leave, to take an uncapped number of carer’s leave days. Carer’s leave will be provided to care for dependents who are well, in recognition of the limited alternative care options that are available.

Note: Ordinary school holidays corresponding with the published school term dates (https://www.education.sa.gov.au/teaching/south-australian-state-schools-term-dates), and pupil free days should be managed as per existing agency processes, with employees to use existing leave entitlements if they cannot attend work and it is not practicable to use flexible working arrangements.

Directing employees to take annual/recreation leave

In accordance with Schedule 1, Part 4, clause 5(3) of the Public Sector Act 2009 (PS Act) and regulation 21(4) of the Public Sector Regulations 2010, employees with annual/recreation leave entitlements in excess of 12 month’s accrual may be directed to reduce their leave balances with three business days’ notice.




This title should appear after the list of family members below.


Should not be personal leave, should be COVID leave


Child-Care closures, including vacation care, will affect the care of children during school holidays and pupil free days and should also be treated as per the first paragraph.Plenty of employees would have been relying on childcare/vacation care and not taking leave during school holidays and pupil free days.


This is a misrepresentation of the terms of the PS Act and Regs.


This is below the minimum standard for annual leave in the Fair Work Act 1994 (contravenes PS Act 73)

Payment of annual/recreation leave entitlements

In accordance with Schedule 1, Part 4, clause 5(3) of the PS Act, employees may elect to take annual/recreation leave on half salary, and in that event:

a) the period of leave is to be twice the period to which the employee would otherwise have been entitled; and

b) the first half of the leave is to be taken on full pay; andc) the second half of the leave is to be taken to be leave without pay.

Payment in lieu of annual/recreation or long service leave

A Public Sector employee with a family member who has lost their job and is experiencing financialhardship, may apply to receive a lump sum payment in lieu of their accrued annual/recreation or long service leave.

Applications must request one week of leave to be paid out as a minimum and must retain at least two weeks of recreation leave. Long service leave may be paid out to a zero balance.

Eligibility criteria and evidence requirements

To access payment in lieu of recreation and/or long service leave, the applicant must provide justification detailing:

current leave balances;

leave type and number of days for which they are seeking payment in lieu;

brief detail of the personal situation necessitating the request, including the relation of the employee to the family member who has lost their job and is experiencing financial hardship.

To approve the request, the delegate must be satisfied that financial hardship exists, and may set their own evidentiary requirements in order to satisfy this requirement.

Employees accessing this provision must recognise that the request for payment in lieu may result in insufficient leave balances being available to them when they seek to apply for leave in the future.

Definition of family member for the purpose of receiving payment in lieu of annual/recreation and/or long service leave

For the purpose of this provision only, 'family member’ is defined as:

all family members living at the employee’s residence, including siblings, parents, etc.; and

immediate family members (i.e. parents or children (including step and adopted)) of the employee, regardless of where they live.




This is a misrepresentation of the terms of the PS Act and Regs.


This provision has no benefit to an employee. Employees are entitled to be remunerated.


Cashing out of annual leave is below the minimum standard for annual leave in the Fair Work Act 1994 (contravenes PS Act 73)


Suggest adopting the same definitions as per carer’s leave above, and expanding on that in the second dot point here if required.


Need to include a statement that employees should seek financial and centrelink advice about the implications for their own situation.

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