The Fair Work Commission says it is “not satisfied there is an elevated risk of infection for workers covered by the Pharmacy Award”
An application by unions to introduce paid pandemic leave for workers including employee pharmacists and pharmacy assistants has been knocked back.
The Fair Work Commission has noted that the situation with COVID-19 could change quickly, and if it does, it may need to revisit the issue.
In early April 2020, the Fair Work Commission decided to act in response to the COVID-19 pandemic and determined to vary 99 modern awards to include provisions establishing an entitlement to unpaid pandemic leave.
These provisions initially ran from 8 April 2020 to 30 June 2020, and on July 2, they were extended until 30 September 2020.
In April the Full Bench of the FWC said that there were several reasons for this, including that access to unpaid pandemic leave would enable more people to remain in employment.
However several unions, including the Australian Professionals, Engineers, Scientists and Managers Association (APESMA – Professionals Australia), the Australian Council of Trade Unions (ACTU), the Australian Nurses and Midwives Federation (ANMF), and the Health Services Union (HSU) foreshadowed that further measures might need to be taken for health care workers covered by several health awards, including the Pharmacy Industry Awards 2010.
APESMA submitted that pharmacists were on the “front line” and should be entitled to paid leave on multiple occasions.
Several applications were then filed by unions, including one by APESMA and the Shop, Distributive and Allied Employees Association, representing pharmacy assistants, to vary the Pharmacy Industry Award.
The unions wanted paid pandemic leave of up to two weeks for any employee required to self-isolate, who was awaiting the results of a COVID-19 test, or prevented from working by measures taken by Government or medical authorities in response to the COVID-19 pandemic.
Employees who contracted COVID-19 would be required to inform their employer and then be allowed to be absent from work without loss of pay until they had medical clearance to go back to work. Provisions were also suggested for casual workers based on their average weekly earnings up to six months previously.
Employers would not, under these suggested changes, be able to require employees to take annual leave because of a COVID-19 diagnosis prior to exhausting the special leave suggested.
The FWC Full Bench has now convened to consider this and decided against such a measure – for the time being.
The ACTU said that some employees, including those in pharmacy, had a higher risk of contracting COVID-19 and a higher economic risk from the pandemic.
The FWC noted that the ACTU’s submission held that “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”.
“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,” the ACTU said.
It provided evidence from experts including Professor Raina MacIntyre, a public health physician, epidemiologist and academic who 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.
Prof MacIntyre said closed, institutional settings such as health care, aged care and disability care have a magnified risk of outbreaks, noting that 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; and in Italy, 10% of infections were in health workers.
In her evidence she said that, “Uncapped paid leave for people in quarantine or under treatment is a minimal requirement for all essential workers in the health sector, disability sector and the other sectors represented in the testimonials I have been provided”.
“If they get ill, treatment of COVID-19 may be prolonged, for three weeks or longer, and recovery may take even longer, given the evidence of long term effects of the infection, such as on the cardiovascular system.
“Respect and care for the needs and wellbeing of the health workforce is key to maintaining a functioning workforce during the pandemic, which may last for two or more years.”
The FWC heard testimonials from a number of health workers, including those working in pharmacy.
One pharmacy assistant said that the CBD pharmacy where she works is near a COVID-19 testing centre and that “she has had at least two 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 two 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.”
Another pharmacy assistant said that, “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 sanitise 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.”
This pharmacy assistant 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.
A pharmacist who undertakes medication reviews as a casual employee, who at over 70 is in the high-risk age group for COVID-19, said that she has no current personal leave entitlements and has pressure to pay her bills and receive income.
She was unable to perform her normal work from the middle of March 2020 until the end of April 2020, when medication reviews by teleconferencing were introduced.
She has now returned to performing medication reviews at clients’ homes, despite the fact that clients often take no steps against infection.
Meanwhile the Pharmacy Guild of Australia submitted that “in light of the measures which have been taken to control the COVID-19 pandemic, there is no greater risk or chance that a person working in a community pharmacy would come into close contact with a person who is carrying COVID-19 than in any other retail environment, or in schools, clubs, hotels, food courts, cafes, restaurants, sports events, gyms, swimming pools, beauticians, hair dressers, or by visiting family or friends, undertaking interstate or intra-state travel, attending weddings or funerals or attending a workplace”.
Instead, pharmacy workers had a lower risk of contracting COVID-19 than workers in other industries, the Guild said.
This was because of “hygiene requirements and the brevity of contact with particular customers”.
The FWC was not satisfied that pharmacy workers were at any greater risk than other workers.
“The evidence before us tends to suggest that both pharmacists and pharmacy retail assistants have no greater level of risk than retail workers in general,” it said.
“Although pharmacies are inherently likely to attract a proportion of customers who have symptoms of illness and are seeking medication, such customers are equally likely to enter other retail premises.
“There is no information before us to indicate that pharmacies have manifested themselves as sources of infection.
“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.”
However the Commission also noted that as underlined by Professor MacIntyre, “the position in respect of the COVID-19 pandemic has the potential to radically change in a matter of weeks”.
“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.”
The matter was adjourned.