Fair Work Act 2009
s.739 - Application to deal with a dispute

Health Services Union
v
Paston Pty Ltd T/A Meredith House Nursing Home
(C2022/2737)

Application to deal with a dispute about matters arising under an enterprise agreement – alleged underpayment of termination entitlements - Meredith House Aged Care, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017 – jurisdictional objection raised by Respondent.

[1] On 4 May 2022, the Health Services Union (Applicant) filed an application in the Fair Work Commission (Commission) pursuant to s.739 of the Fair Work Act 2009 (Cth) (Act) seeking that the Commission deal with a dispute in relation to the Meredith House Aged Care, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017 (Agreement). The Respondent to the dispute is Paston Pty Ltd T/A Meredith House Nursing Home (Respondent).

Background

[2] The Respondent wrote to its employees and the Applicant via a letter dated 9 March 2022 advising them that:

•  after careful consideration and an external review of its operations and strategic direction, on 9 March 2022 the Respondent made the decision to close its residential aged care service “Meredith House, Strathfield”;

•  the external review concluded that the age and condition of the building meant it was not fit for purpose as a residential aged care facility and would likely struggle to meet standards under the Aged Care Act 1997;

•  all staff employed as at 9 March 2022 would receive their full entitlements and pay up to the closure of the home, which it expected to occur by 24 April 2022;

•  it had entered into discussions with other providers who had expressed an interest in offering employment to its employees.

[3] On 18 March 2022 a staff meeting was held and following that staff meeting a member of the Applicant made the Applicant award of concerns. In an email to the Applicant on 18 March 2022 a member of the Applicant, Mr Lillo, raised concerns that:

•  the word ‘redundancy’ was not mentioned during the meeting and while employees were told entitlements would be paid, the Respondent was silent about redundancies;

•  the Respondent’s accountant said ‘staff must individually phone them to request information about their entitlements’ and staff had reported the number given was not being answered and not all employees were aware of who to contact;

•  the meeting was not flagged as compulsory, only around 10 staff attended, those who attended were rostered to work and would not be paid and there was no commitment that there would be any future meeting.

[4] In email to the Applicant on 18 March 2022 Mr Lillo indicated that employees were seeking that the Respondent reply in writing to points raised in a document titled ‘STAFF MEETING 18^th March 2022’ (Employee Concerns Document) which, by way of summary indicated:

•  employees wanted to know when the ‘Aged Care Bonus’ was arriving as they were aware that this had been provided by government to aged care facilities;

•  employees wanted a written commitment that redundancy payments and other entitlements would be honoured, including but not limited to accrued annual leave, long service leave, time in lieu and superannuation;

•  employees wanted a written explanation of how their redundancy payments would be calculated so they had an opportunity to provide the calculations to the union for verification;

•  permanent employees wanted written work references and statements of service before 24 April 2022;

•  employees had been told that no sick leave or emergency leave was allowed to be taken and that they would not be paid for sick leave. Employees also expressed that they had been restricted from applying for annual leave. Employees sought clarification about their award entitlements to sick, annual and emergency leave in light of this;

•  employees wanted to know how their redundancy pay would be impacted if they were redeployed to another facility and whether they would still be entitled to it;

•  employees wanted clarification about their conditions moving forward, e.g. if consumers left before the proposed closure date or 24 April 2022, whether permanent employees would be paid in lieu of notice or if there was a COVID-19 outbreak and consumers were unable to leave the facility;

•  care employees wanted a commitment that they would not be required to fill in absences in the kitchen and or laundry;

•  employees wanted a commitment that their representatives would be able to meet employees in an ‘open forum’ should the need arise and that unions would be invited to attend;

•  employees wanted meetings to be held at more accessible times and wanted them to be longer to enable employees a genuine opportunity to discuss concerns;

•  employees wanted a commitment that their designated contact person(s) would be available to answer phone calls in relation to pay and conditions, noting that some employees reported that phones had been switched off.

[5] The email of 18 March 2022 also raised concerns about underpayment of personal leave in relation to employees who contracted COVID-19 and an employee who had a miscarriage as well as a more general concern about underpayment.

[6] On 21 March 2022 the Applicant wrote to Sue Shah, Chief Operations Officer of the Respondent, via email noting that employees had raised some concerns and provided a copy of the Employee Concerns Document. By way of summary, in the email of 21 March 2022 the Applicant made three requests:

“1. That management please respond in writing to each point listed in the staff document, addressing clearly all of the issues raised. Following this, that staff are not named or discussed in relation to this document, as staff members are extremely anxious about seeking clarification.

2. That management makes the distinction between entitlements and redundancy to staff in writing, outlining what each of those terms implies. This is a main cause of concern to staff, as they may not fully understand what each term means. As this is an incredibly uncertain time for some people, Meredith House must provide individuals with their redundancy & entitlement calculations in writing, as this will inform many of their choices moving forward.

3. That management will explain to staff the process of accepting new employment, such as that staff are still entitled to a redundancy & their entitlements if they choose to take a job which is found with Meredith House’s assistance. Staff seem very confused and need reassurance that if they start a new job after Meredith House’s closure (ie. at Uniting, etc.) that they will still receive a redundancy, as it is not a regular transfer of business”.

[7] In relation to the concerns about sick leave the Applicant said:

“Lastly, I’ve had some concerns raised with me in relation to personal/sick leave. Staff have informed me that apparently that no one will, until the closure date, be able to access paid sick leave? I’m not sure if this is a misunderstanding, but staff have told me that personal/sick leave cannot be applied for, which is strange as personal doesn’t need to be applied for. Could you please respond with your understanding of the matter?

I’ve been told that some people haven’t been paid for personal leave recently, but I will contact these staff members & pursue these matters individually if needed”.

[8] Having not received a response, the Applicant sent a further email to Sue Shah requesting a response by 28 March 2022 and noting that if no response was received it would be escalating the matter further.

[9] On 29 March 2022, having not received a response the Applicant sent a further email to Sue Shah indicating that it had tried to contact her at various times via email and the telephone number printed on the closure announcement however that number only led to the Employee Assistance Program and that if a response was not received by close of business it would be filing a dispute in the Commission as per the Agreement’s dispute resolution clause due to a failure to consult.

[10] On 29 March 2022 Sue Shah responded to the Applicant stating that they had not received any telephone messages or missed calls and that they would be forwarding a response by 1 April 2022.

[11] On 1 April 2022, Craig Hooper responded on behalf of the Respondent, copying Sue Shah. By way of summary the response:

•  suggested that the Respondent arrange an appropriate time to review the relevant questions pertaining to employees’ roles and employment on a one on one or group basis to allow those who had queries to discuss them confidentially with management. The response also suggested that employees could be represented by the Applicant at the meetings if they wished;

•  indicated that employees would be provided with calculation details and a breakdown of their redundancy payment, including the date on which it would be paid;

•  indicated that employees would be received a redundancy payment calculated up to 24 April 2022, depending on their service period;

•  indicated that notice of termination and redundancy payments would be in accordance with the National Employment Standards (NES);

•  indicated that if employees were offered and accepted employment with a different organisation it was not proposed that they would be exempt from redundancy pursuant to s.122 of the Act;

•  indicated that where employees had asked for a written reference and statement of service the Respondent had made it a priority to provide them with a statement of service to allow them to secure alternate employment;

•  indicated, in relation to sick leave, that it was unaware of any incidents where employees had been advised they were unable to access sick leave.

[12] On 1 April 2022 the Applicant responded to Craig Hooper’s email and by way of summary:

•  insisted on written responses to the concerns raised in the Employee Concerns Document and sought the minutes of the staff meeting of 18 March 2022;

•  requested a firm date for redundancy and entitlement calculations;

•  indicated that employees had been waiting for their reference and statement of service and sought clarification as to the date on which they would be sent;

•  indicated that it would pursue any unpaid personal leave individually if needed.

[13] On 12 April 2022 Craig Hooper responded via email to concerns the Applicant raised about employees having their shifts cancelled. In that email Craig Hooper advised:

“Permanent and part time staff are guaranteed to be paid their contracted hours”.

[14] On 12 April 2022 the Applicant responded to Craig Hooper’s email and by way of summary:

•  advised that the Agreement required seven days’ notice of a change of roster except that the roster may be altered at any time by mutual agreement or to enable the functions of the facility to be carried out where another employee is absent due to illness or in an emergency;

•  advised that as the changes to roster arrangements were made with less than 7 days’ notice the Respondent was in breach and the Applicant sought that its members were not financially disadvantaged;

•  expressed the view that while Craig Hooper’s email of 12 April went some way to alleviating the concerns, the employees would “still be short their shift entitlements for the cancelled shifts”;

•  requested that in addition to the contracted hours, employees who had their shifts cancelled be paid all loadings and allowances they would have otherwise received.

[15] On 12 April 2022 Craig Hooper responded confirming that permanent and part time employees would be paid for their contracted hours and that if an employee had a shift cancelled with less than seven days’ notice, they would be entitled to the corresponding shift entitlements for the shift for which they were originally rostered.

[16] The Applicant responded shortly thereafter seeking clarification that in relation to shift cancellations within the next 7 days employees would receive their contracted hours and corresponding entitlements and recommending that a communication be sent to employees about this.

[17] Craig Hooper responded on the same day as follows:

“There are two topics here, so I think it’s best to separate them. Permanent and part time staff are guaranteed to be paid their contracted hours. In regard to the shift entitlements and cancellations, it depends on when the staff member was given notice of the shift cancellation. If notification of the shift cancellation is within seven days of rostered shift, then the staff member will receive their contracted hours and corresponding entitlements”.

[18] In that same email Craig Hooper also advised that he had been told that there had been three or four people who had their shifts cancelled and they would be followed up.

[19] On 12 April 2022 the Applicant wrote to Craig Hooper via email again in advance of a staff meeting and advised Craig Hooper that employees would like the minutes of the meeting to be distributed to employees and that the following questions/concerns be addressed:

•  clarification that the Respondent would pay redundancies and entitlements in accordance with the Agreement;

•  concerns about “underpayments relating to unpaid sick leave, unpaid loadings in relation to the 12-hour shifts, overtime hours worked during the Code Red Lockdowns from 2020 to the end of their duties with the organisation, and the still unpaid Retention Bonus”;

•  provision of statements of service.

[20] The Applicant also requested confirmation that any employee required to attend the meeting while not on shift would be paid for the duration of the meeting.

[21] On 13 April 2022 Craig Hooper responded via email and advised that the staff meeting would be cancelled as key staff members had tested positive to COVID-19. Craig Hooper responded to the concerns raised in the Applicant’s email of 12 April 2022:

•  confirming the Respondent would pay redundancies and entitlements in accordance with the Agreement;

•  advising that pay queries are acted on relatively rapidly and seeking the dates of the pay fortnight and/or “date the form was submitted” in relation to the underpayment concerns;

•  advising that employees had been informed that the Retention Bonus would be paid once the Respondent received the payment from the government;

•  confirming a statement of service would be provided to employees.

[22] On 26 April 2022 employees received letters dated 24 April 2022 advising them of the termination of their employment effective 24 April 2022 and attaching a redundancy calculation that would be paid on 11 May 2022 along with other entitlements. A sample letter was provided with the application and by way of summary advised:

•  the Respondent had provided more than 6 weeks’ notice since the notification sent on 11 March 2022;

•  in addition to leave entitlements employees would be provided with a severance payment in accordance with the Agreement;

•  employees would also be paid accrued statutory leave entitlements and unpaid salary up until the date of termination;

•  the gross amounts would be paid into bank accounts on 11 May 2022.

[23] On 26 April 2022 the Applicant emailed Craig Hooper and advised that while looking through the termination letters it had come across two concerns and sought that they be resolved urgently. The concerns were articulated as follows:

“1. No payment of notice period – the letters I have viewed have stated that notic period will not be paid as notice was given on 11 March 2022, we believe this to be incorrect and that our members are entitled to their notice period under the Meredith House Agreement. The only correspondence the HSU has available dated the 11 March is a notice that the service is closing and that the employees will be effected, this letter does not amount to notice of termination. Our members have been unable to provide any alternate documentation dated 11 March 2022 which states that their employment will be terminated effective 24 April 2022.

2. No payment summary has been provided to terminated staff – this may be a matter that will soon be rectified but the letter received by our members does not provide a full breakdown of their entitlements and other moneys owed. This is of concern as the letter then goes on to state that these entitlements will be paid on the 11 May 2022 with no reference any other documentation to be provided. As you would be aware, Meredith House is obligated under their agreement and the Fair Work Act to provide a full payment summary including:

i. the employee’s classification and rate of pay;

ii. ordinary and overtime hours worked;

iii. any penalty rates payable;

iv. annual leave;

v. long service leave;

vi. accrued days off;

vii. time off in lieu;

We are requesting each employee affected be provided a full summary to ensure they

have been paid correctly.”

[24] Having received an out of office reply, the Applicant sent the email to others including Sue Shah of the Respondent and the Respondent’s accountant Andrew Chia on 26 April 2022. A follow up email was sent on 27 April 2022.

[25] On 27 April 2022, the Applicant sent a further email to Sue Shah, ‘Sammee’ and Andrew Chia raising a concern that the Applicant had received several reports that the calculations given to members was incorrect and requesting that employees be provided with a pay summary with the redundancy calculation and how it was determined.

[26] On 28 April 2022 the Respondent replied indicating that it needed more time to respond and estimated it would provide a response on 16 May 2022. The Applicant responded that it would provide the Respondent until 6 May 2022 to resolve the matter however after receiving reports from members that the Respondent had not paid employees for cancelled shifts from 12 April 2022 notified the Applicant that it would be seeking the Commission’s assistance. The Applicant made an application to the Commission on 3 May 2022.

The dispute and relief sought

[27] The application summarises the dispute at question 2.1 of the Form F10 application as follows:

“10. HSU members did not receive notice of termination and as a result are still entitled to that period as defined in clause 15 of the agreement.

11. HSU members immediately noticed the calculations were not consistent with clause 16 of the agreement and were much lower than their entitlement.

12. HSU members were not provided with a full payment summary as required in clause 23 of the agreement and the payment date far exceeded the three business days required under clause 23.c.”

[28] The relief sought by the Applicant is articulated at question 3.1 of the Form F10 application as follows:

“1. Orders or recommendations that all affected employees receive pay summaries and their entitlements as per clause 23 of the agreement.

2. Orders or recommendations that all employees Redundancy calculations are recalculated by the Respondent to be consistent with clause 16 of the Agreement.

3. Orders or recommendations that the Respondent perform an audit of all sick leave taken by staff and pay any instance where it had not, and the employee had sick leave available to them.

4. Orders or recommendations that all affected employees are paid their notice period as clause 15 of the agreement.

5. Any other action the Commission sees fit.”

[29] The Commission attempted to resolve the matter with the parties on a number of occasions since the application was filed and while this assisted in narrowing the matters in dispute the dispute was not resolved through conciliation.

[30] I also note that the Respondent does not appear to be suggesting that entitlements should not be paid in accordance with the Agreement. To the contrary, the correspondence of Craig Hooper suggests that payments, including notice and redundancy calculations, would be calculated in accordance with the Agreement. However, the key issues in contention appear to be whether the entitlements to redundancy and notice were calculated in accordance with the Agreement as a matter of fact and this is where contention between the parties arises.

The response and jurisdictional objection

[31] On 16 May 2022 the Respondent wrote to the Commission in response to the application and explained that:

•  that there had been a change in shareholders of the Respondent in November 2021 and the transition of the business to the new shareholders had been fraught with problems and disputes that remained unresolved;

•  following a review of the safety, quality and liveability of the facility, the decision was made on 11 March 2022 to close the facility based on ensuring the safety and wellbeing of residents and employees;

•  employment records had not been handed over to the new shareholders and the new shareholders were still working with the vendor to resolve the issue;

•  the Respondent sought more time to find, collate, review and finalise the calculations associated with employee entitlements and redundancies.

[32] The Respondent also submitted that there was no jurisdiction for the matter to be heard as it related to former employees of the Respondent.

[33] After conciliation of the matter was unsuccessful, the Respondent was directed to file submissions addressing its jurisdictional objection.

[34] A jurisdictional hearing was held on 3 August 2022. At the hearing, the Respondent was represented by Ms Susan Moran of SWS Lawyers Pty Ltd.

[35] In advance of the hearing, the Respondent filed submissions on 7 July 2022, the Applicant filed submissions on 26 July 2022 and the Respondent filed submissions in reply on 2 August 2022.

[36] The submissions of the parties are summarised below.

Objection 1: The agreement no longer applies to employees of the employer

[37] Clause 4.2 of the Agreement provides:

“This Agreement shall apply to all employees of the employer performing work within the classifications contained in this agreement and employed by a residential aged care facility or homecare or community care program run by or from an aged care facility or provided in NSW.”

[38] By way of summary the Respondent submitted that:

•  on 24 April 2022 the employment of its employees was terminated and therefore when the application was filed the Agreement no longer applied to employees and they were no longer “employees of the employer”;

•  it follows that the dispute resolution procedure in clause 9 of Agreement no longer applies to former employees;

•  in order for the Commission to deal with the dispute, the employees needed to raise the dispute while they were still employed;

•  the dispute raised by the Applicant is specifically in relation to notice of termination, calculation of redundancy entitlements and provision of a payment summary and these issues were only raised after 24 April 2022;

•  as the issues the subject of the dispute were not raised prior to the termination of employment the Commission does not have jurisdiction to deal with the dispute.

[39] In response to the jurisdictional objection raised by the Respondent, the Applicant submitted that: 1

•  it is well established that, if the dispute settlement procedure has commenced, then an employee should have access to that full procedure and not part thereof. In this regard, the Applicant relied on the decision of the Commission in Construction, Forestry, Mining and Energy Union v North Goonyella Coal Mines Pty Ltd [2015] FWC 1138, where Commissioner Lewin stated:

“Moreover, the procedures as such will not lapse in the event the person’s employment is terminated during the prescribed process. This is because when the procedures are commenced the person on whose part the procedure has commenced has a right under the Agreement to have the whole of the procedure, as specified by the terms of the Agreement, completed.” 2

•  the matters the subject of the application were in dispute prior to the termination date and the dispute resolution procedure had been exhausted.

[40] In its submissions in reply, the Respondent submitted that: 3

•  the “letter” relied on by the Applicant, which the Applicant states was prepared by employees for discussion at a staff meeting to be held on 18 March 2022, does not raise the specific issues the subject of the current dispute;

•  the dispute raised by the Applicant is specifically in relation to notice of termination, how redundancy payments have been calculated and the provision of a payment summary. However, the dispute raised by the Applicant prior to the termination of the employees’ employment was in relation to an alleged failure to consult and the provision of information in relation to the closure of the site. The Respondent submits that the Applicant acknowledged this in its’ submissions.

Objection 2: The Applicant has not followed the dispute resolution procedure

[41] The Respondent submitted that: 4

•  the Commission does not have jurisdiction to deal with the dispute as the Applicant has not followed the dispute resolution procedure set out in clause 9 of the Agreement, which requires a sequence of steps to be taken before the dispute may be referred to the Commission for resolution;

•  clause 9.2 of the Agreement first requires the parties to attempt to resolve the matter by discussions between the employees and the supervisor and discussions between employees and more senior levels of management. The Respondent submits there have been no such discussions;

•  under clause 9.3 of the Agreement, a party may only refer the matter to the Commission where “all appropriate steps under Clause 9.2 have been taken”. The Respondent submits that all appropriate steps have not been taken, and accordingly the dispute has not been validly referred to the Commission; and

•  as the Applicant has not followed these processes, there has been no valid referral of the purported dispute to the Commission and, as a result, there is no jurisdiction conferred by clause 9 of the Agreement.

[42] In response to the jurisdictional objection raised by the Respondent, the Applicant submitted that: 5

•  clause 9.2 of the Agreement sets out the steps that are required to be followed by the affected parties in a dispute, which can be summarised as the affected parties attempting to resolve the issue with their direct supervisor and then escalate to senior managers as required. If the issue is unable to be resolved the matter can be escalated to the Commission under clause 9.3 of the Agreement;

•  clause 9.4 of the Agreement provides the ability for an affected party to appoint a representative, including a union representative, to represent them throughout the dispute resolution process;

•  the substance of the dispute was around the closure of the site and ensuring that the Respondent complied with its obligations under the Agreement through consultation with the affected employees;

•  after receiving the notice of closure, employees collated their concerns in a letter that was to be discussed at a meeting scheduled for the 18 March 2022. It was at this meeting that employees would attempt to resolve the matter directly with the Respondent;

•  when these concerns were not addressed and remained unresolved, the employees exercised their ability under clause 9.4 of the Agreement to request the Applicant provide representation for the remainder of the dispute process;

•  the Applicant continued to raise the members’ concerns with the Respondent to resolve the matters up until the site closure. During this period, the Respondent initially failed to engage with the members’ concerns until a threat of escalating the dispute to the Commission in accordance with clause 9.3 of the Agreement. The dispute was not lodged in the Commission at this time as the Respondent’s representative engaged with the Applicant’s members’ concerns and made commitments in accordance with the Agreement;

•  on 26 April 2022, the Applicant received reports from several members that they had been terminated and the redundancy pay was incorrect. This concern was raised by the Applicant with the Respondent immediately by way of email, a copy of which has been provided to the Commission;

•  it was after this that the Applicant referred the dispute to the Commission as part of the same process; and

•  the steps taken above demonstrate that it adhered to the dispute resolution procedure in clause 9.2 of the Agreement and that the dispute resolution procedure had commenced prior to the termination of employment.

[43] In its submissions in reply, the Respondent submitted that: 6

•  as the dispute was raised at the staff meeting on 18 March 2022 at which discussions were had with the relevant levels of management, the Respondent submits that the issues discussed were not the issues the subject of the current dispute and could not have been resolved by the Respondent prior to the issues arising (for example, in relation to the provision of notice of termination);

•  there is no evidence before the Commission of discussions taking place between the relevant employees and their direct supervisor or more senior levels of management in relation to the issues the subject of the dispute; and

•  where a dispute resolution procedure sets out the prerequisite steps to be followed prior to the Commission dealing with the dispute, those steps must be followed. If these steps are not strictly followed, the Commission will not have jurisdiction to deal with the dispute.

The witness evidence

[44] At the hearing:

•  Mr Irshad (Sammee) Ali, Director of the Respondent, gave evidence as a witness for the Respondent; and

•  Mr Emmett Gray, Aged Care and Disability Services Organiser of the Applicant, gave evidence as a witness for the Applicant.

Mr Irshad (Sammee) Ali

[45] Mr Ali gave evidence that: 7

•  on 9 March 2022, he caused a letter to be sent to the Applicant, which advised the closure of the Meredith House facility would occur on 24 April 2022. A copy of the letter was attached to Mr Ali’s statement and relevantly states:

“After careful consideration and an external review of our operations and strategic direction, Paston Pty Ltd has today made the difficult decision to close its residential aged care service Meredith House, Strathfield.

…

Rest assured that all staff employed as of today will receive their full entitlements and pay up to the closure of the home which is expected to occur by Sunday 24 April 2022. We have also entered into discussions with Uniting Care, the Jesmond Group and the Albanese Group that operate aged care services across Sydney and both providers have expressed an interest in offering employment to our staff. Please note that a decision to take up these offers does not in any way effect staff entitlements…”;

•  on or around 24 April 2022, the Respondent closed the Meredith House facility. The employment of all employees was terminated on 24 April 2022 by way of redundancy;

•  on 26 April 2022, the Applicant sent an email to Mr Craig Hooper of Community Home Australia, who was representing the Respondent at the time, in relation to issues arising following the termination of employment of all employees on 24 April 2022. A copy of the email was attached to Mr Ali’s statement and states:

“Hi Craig

As I imagine you are aware, our members at Meredith House have now begun receiving their termination letters and have sought advice regarding the letter’s and redundancy figures (sic).

While looking through these letters I have come across two concerns that need to be addressed urgently:

1. No payment of notice period - the letters I have viewed have stated that notice period will not be paid as notice was given on 11 March 2022, we believe this to be incorrect and that our members are entitled to their notice period under the Meredith House Agreement. The only correspondence the HSU has available dated the 11 March is a notice that the service is closing and that the employees will be effected (sic), this letter does not amount to notice of termination. Our members have been unable to provide any alternate documentation dated 11 March 2022 which states that their employment will be terminated effective 24 April 2022.

2. No payment summary has been provided to terminated staff- this may be a matter that will soon be rectified but the letter received by our members does not provide a full breakdown of their entitlements and other moneys owed. This is of concern as the letter then goes on to state that these entitlements will be paid on the 11 May 2022 with no reference any other documentation to be provided. As you would be aware, Meredith House is obligated under their agreement and the Fair Work Act to provide a full payment summary including:

i. the employee’s classification and rate of pay;

ii. ordinary and overtime hours worked;

iii. any penalty rates payable;

iv. annual leave;

v. long service leave;

vi. accrued days off;

vii. time off in lieu;

We are requesting each employee affected be provided a full summary to ensure they have been paid correctly.

We are requesting a response to the above two matters by COB this Friday 29 April 2022…”;

•  on 28 April 2022, he sent a letter to the Applicant in response to its email of 26 April 2022, which stated that the Respondent had received the email, needed “more time to review and provide [the Applicant] with an appropriate explanation” and estimated that a response would be provided by 16 May 2022. A copy of the letter was attached to Mr Ali’s statement; and

•  “[t]here have been no discussions between the employees and the relevant supervisor, nor have there been discussions between the employees and more senior levels management in relation to the [d]ispute”.

Mr Emmett Gray

[46] Mr Gray gave evidence that: 8

•  on 11 March 2022, he received an email from a member of the Applicant, who was an employee at the Meredith House facility, attaching a letter dated 9 March 2022 from the Respondent to employees of the Meredith House facility. A copy of the letter was attached to Mr Gray’s statement and states:

“Dear staff member

We had planned to hold a staff meeting this coming Friday to advise everyone of our news. Unfortunately, the sudden COVID outbreak has meant we are unable to meet as a group so have resorted to writing to everyone in the first instance. We plan to hold a video conference session next week for any questions or discussions.

After careful consideration and an external review of our operations and strategic direction, Paston Pty Ltd has today made the difficult decision to close its residential aged care service Meredith House, Strathfield.

An external independent review of the home has concluded that due to the age and condition of the building, it is no longer fit for purpose as a residential aged care facility and would most likely struggle to meet the expected standards under the Aged Care Act 1997. We do not believe we can continue to offer an acceptable level of care in line with our high standards.

We will be advising the relevant unions today.

Rest assured that all staff employed as of today will receive their full entitlements and pay up to the closure of the home, which is expected to occur by Sunday 24 April 2022. We have also entered into discussions with Uniting Care, the Jesmond Group and the Albanese Group that operate aged care services across Sydney. Both those providers have expressed an interest in offering employment to our staff. Please note that a decision to take up these offers does not in any way effect your entitlements.

We have also established a free Employee Assistance Line provided by Indigjo project. Staff can receive confidential advice and support. The number to contact this support is 9212 5469

Further advice and support

Our director Ms Sue Shah will be based at Meredith House and will manage the decommissioning process with Mr Craig Hooper. Please feel free to contact either of these people on 02 9090 4950 should you wish to discuss any of the matters raised in this correspondence.

Yours sincerely

Chief Executive Officer”;

•  later that day, he was forwarded a similar letter also dated 9 March 2022 from his manager, but this time directed at the Applicant advising of the decision. A copy of the letter was attached to Mr Gray’s statement;

•  both letters from the Respondent dated 9 March 2022 referred to an expected closure date of 24 April 2022, as well as stating that staff will receive their full entitlements and pay up to the closure of the Meredith House facility;

•  the Applicant sent out an announcement the same day with the notice attached. A copy of the announcement was attached to Mr Gray’s statement;

•  on 17 March 2022, he was sent an email from a member, Mr Juan Carlos Lillo, that advised that members were requesting support for an upcoming staff meeting on 18 March 2022. Attached to this email was a letter from members outlining their concerns to be raised at the meeting on 18 March 2022 (Letter from Employees), a copy of which was attached to Mr Gray’s statement and relevantly states:

“STAFF MEETING 18th March 2022

Please note that a copy of this document has been sent to our respective Unions, namely the NSW Nurses and Midwife’s Association and the Health Services Union.

Given the significance of this meeting, we would appreciate it if a copy of the minutes is provided to all staff as well as a written response to this document within a reasonable time.

…

The staff at Meredith House are concerned by the sudden decision to terminate our employment and cease operations, particularly after repeated assurances from the previous and current owners that our jobs would be safe and that the business will continue to run as normal.

Staff feel let down that this decision has been made without inclusive consultation…

…

The following are the issues that staff would like you to address as a matter of urgency:

1. Staff want to know when the Aged Care Bonus is arriving as we are aware that the government has already provided this money to the respective aged care facilities

2. Staff would like written commitment that our Redundancy payments and other entitlements will be honoured. The final notice emailed to staff on the 10th March does not clarify this in detail. It will be appreciated if all staff therefore obtain written notification of their current entitlements which will include but are not limited to:

(i) Accrued Annual Leave

(ii) Long Service Leave

(iii) Time in lieu

(iv) Superannuation Payments

3. Staff would like a written explanation of how their redundancy will be calculated and would like to receive an itemised document before the end our employment so that we may have a reasonable opportunity to submit this to our respective Unions for verification

…

5. Staff have been told that no sick leave or emergency leave is currently allowed and that nobody will be paid sick leave. Staff have expressed that they have been restricted from applying for Annual Leave since December 2022. We would like clarification about this as sick leave, annual leave and emergency leave is part of our Award

6. Staff would like to know what the status is in terms of the redundancy payout should they be redeployed to another facility or helped to obtain employment elsewhere i.e. Will they still be entitled to their redundancy after accepting an alternative deployment?

7. Staff want clarification about our conditions moving forward. For example, staff have asked what will happen if most of our consumers leave before the proposed end date (24^th April). Will permanent staff be required to leave immediately with payment in lieu to the closure date? What will happen, for example, if we have a Covid-19 Outbreak in the facility and consumers won’t be allowed to leave the premises, will staff be asked to stay back under the current award conditions?

8. Care staff would like a commitment from the organisation that they will not be taken off the floor to fill in absences in the Kitchen and/or the Laundry as this may expose staff to risk and injury and could further exacerbate staff shortages and compromise the quality of our care and Safe Work Practices (see The Workplace Health and Safety Act 2011)

…

12. Staff would like a commitment from the organisation that they will continue to work under the principles of industrial democracy, open communication, genuine consultation and adherence to Workplace Health and Safety Legislation”;

•  on 18 March 2022, he had a conversation with Mr Lillo after the staff meeting occurred. Mr Lillo advised him of the following:

“i. They did not address if staff would be made redundant, they did not use the word termination, and only referred to people’s entitlements being paid out;

ii. They had a copy of [the Letter from Employees] and advised they could not address the concerns due to confidentiality.

iii. The staff meeting had left employees anxious and they were seeking support from the HSU.”

•  after this conversation, Mr Lillo sent him an email clarifying members’ concerns. A copy of the email was attached to Mr Gray’s statement and states;

“Hi Emmett,

Thank you for our phone conversation this afternoon.

I hope the following information gives you a better understanding of the issues we need to have addressed. It would be helpful if you contact the facility to please encourage them to reply to the document submitted at the meeting this morning.

During this brief meeting nobody was assigned to take down minutes or keep a record of the information given. At no time did any of these individuals mention the word redundancy, they only referred to our “entitlements”. They said all our entitlements will be paid but stayed silent about redundancies.

The accountant said staff must individually phone them to request information about their entitlements. From reports given by staff the number given is not being answered and not everyone is aware which number or contact person to phone.

…

The issues that we insist on are:

1 That they reply in writing to every point numbered in the document, addressing clearly all of the issues raised

2 That people are not intimidated, outed, named or discussed in relation to this document…

2 That they make the distinction between entitlement and redundancy to staff in writing, outlining what each of those terms implies

3 That they be upfront about whether individuals who accept redeployment will receive their redundancy in addition to their entitlements or if the right to claim redundancy will be forfeited as a result of this

4 That they reply in writing about sick leave and emergency leave specifically addressing the information given to staff that no-one will, until the closure date, be able to access paid sick leave. We have staff who contracted Covid, submitted a medical certificate but were never paid. We have a staff who had a miscarrige (sic) produced a medical certificate but was never paid. They have approached the facility about this but nothing has happened. During the meeting several staff also mentioned that they have not been paid correctly and that this is becoming an ongoing issue (underpayment, no loadings paid etc).

Finally, please be emphatic that staff do not want to have to phone to get a statement of their entitlement and/or redundancy. This information should be provided to every staff member in writing clearly outlining how it was calculated as soon as possible (see copy of Enterprise Agreement). Every workplace does this as a matter of course…”;

•  on 21 March 2022, he sent an email to Ms Sue Shah, Chief Operations Officer of the Respondent, advising of members’ concerns and requesting clarification about responding to the Letter from Employees, that each employee receive a redundancy calculation to address the concerns building among all employees, and that management explain the process of accepting new employment. A copy of the email was attached to Mr Gray’s statement;

•  on 24 March 2022, he did an offsite visit for employees of the Meredith House facility, during which:

•  members were “concerned about the site closure and that details were vague”;

•  members “reported being told by management they would not have their sick leave approved”;

•  members were concerned about the payment of their entitlements and redundancy; and

•  members were “also concerned about Ms Shah discussing employment opportunities with other businesses and there was no clear answer if this would affect their redundancy”.

•  on 25 March 2022, he sent an email to Ms Shah requesting a response to the members’ concerns, as outlined in his email of 21 March 2022, by close of business on 28 March 2022. A copy of the email on 25 March 2022 was attached to Mr Gray’s statement;

•  between 24 and 29 March 2022, he also attempted to call Ms Shah on the number provided in the letter from the Respondent dated 9 March 2022 and discovered it to be for the Employment Assistance Program;

•  on 29 March 2022, after not receiving a response to all prior correspondence, he sent another email to Ms Shah. A copy of the email was attached to Mr Gray’s statement and states;

“Hi Sue,

I have tried to contact you various times via email and the phone number that was printed on the closure announcement, however that number only leads to the Employee Assistance Program.

Please respond to my previous emails by no later than COB Today, Tuesday 29 March 2022 or we will be filing for dispute in the Fair Work Commission as per the Meredith House EBA dispute resolution clause due to failure to consult.”

•  he received a response from Ms Shah committing to a response on 1 April 2022. A copy of the email was attached to Mr Gray’s statement;

•  on 30 March 2022, he received a response from Mr Hooper on behalf of the Respondent, which responded to the concerns outlined in his email of 21 March 2022. A copy of the email was attached to Mr Gray’s statement and relevantly states;

“Hi Emmett,

Thanks for your patience on this reply.

…

We thank the staff for expressing their concerns on the letter which was provided to Management during our Staff Q&A session held on Friday 18 March 2022…

…

In relation to your “requests” or queries, please see our responses below:

1. That management please respond in writing to each point listed in the staff document, addressing clearly all of the issues raised…

Management will be more than happy to arrange an appropriate time with any staff member to discuss any queries which they have pertaining to their role and employment on a 1:1 basis or group basis as to allow the person/people who have any queries to be able to discuss these confidentially. Please note that any representation during this meeting is welcome.

…

2. That management makes the distinction between entitlements and redundancy to staff in writing, outlining what each of those terms implies. This is a main cause of concern to staff, as they may not fully understand what each term means. As this is an incredibly uncertain time for some people, Meredith House must provide individuals with their redundancy & entitlement calculations in writing, as this will inform many of their choices moving forward.

Please note that staff will be provided with the calculation details and a breakdown of their redundancy payment, including the date the redundancy payment will be paid.

We understand that it may take time for our residents to be fully relocated and accordingly we will be winding back our service. However, staff will be receiving a redundancy payment that is calculated up to the 24 April 2022 depending on service period. This payment is not connected to the resident numbers at the Aged Care Facility.

We note that the notice of termination and redundancy pay forms part of the National Employment Standards (NES). Management sent correspondence to all staff on 11 March 2022 that the final day of the facility to be open was 24 April 2022.

Accordingly, we will ensure that we will follow the legislative notice period required depending on the duration period of continuous service of each staff member.

…

3. That management will explain to staff the process of accepting new employment, such as that staff are still entitled to a redundancy & their entitlements if they choose to take a job which is found with Meredith House’s assistance. Staff seem very confused and need reassurance that if they start a new job after Meredith House’s closure (ie. at Uniting, etc.) that they will still receive a redundancy, as it is not a regular transfer of business.

We are very happy for staff to seek alternative opportunities, including but not limited to Uniting Care, the Jesmond Group or the Albanese Group. Indeed, some staff have taken the initiative and have already been offered new positions with different organisations. Meredith House staff who are offered and accept employment with any new employer is not proposed as an exemption to a redundancy payment pursuant to s122 of the Fair Work Act 2009 (Cth)…

4. Lastly, I’ve had some concerns raised with me in relation to personal/sick leave. Staff have informed me that apparently that no one will, until the closure date, be able to access paid sick leave? I’m not sure if this is a misunderstanding, but staff have told me that personal/sick leave cannot be applied for, which is strange as personal doesn’t need to be applied for. Could you please respond with your understanding of the matter? I’ve been told that some people haven’t been paid for personal leave recently, but I will contact these staff members & pursue these matters individually if needed.

We are unaware of any such incidents where staff have been advised that they are unable to access their sick leave at present. This goes against any formal communication, including our staff Q&A session held onsite in Meredith House on Friday 18 March 2022. Management has advised staff during these discussions that where personal leave was required to be taken for more than 2 continuous days then the policy was that a medical certificate was required. Additionally, it would only be in exceptional circumstances that management would seek for a staff member to provide a medical certificate for one day’s absence from their role…”

•  he responded to Mr Hooper’s email, outlining the Applicant’s further concerns, in an email on 1 April 2022. A copy of the email was attached to Mr Gray’s statement;

•  on 31 March 2022, he conducted a site visit “during which members continued to remain concerned about the lack of consultation about the site closing. [He] went to the Managers office to raise these concerns. I spoke with the manager present, Ms Marcelle De Semaan, to get Ms Shah’s mobile number and to investigate the claim that they were telling staff that sick/personal leave would be denied by Meredith House”;

•  on 20 April 2022, he returned from a period of leave and was informed that the matter had been escalated to the Applicant’s industrial division and was being managed by Mr Andrew Gallagher. Mr Gallagher sent him an email which provided a summary of what occurred, attaching correspondence with management of the Respondent. A copy of the email from Mr Gallagher was attached to Mr Gray’s statement;

•  on 26 April 2022, he received emails from multiple members advising that they had received the notification of termination of their employment via email and were concerned that they had not been paid in accordance with the Agreement. He escalated the matter to Mr Gallagher; and

•  between 26 and 27 April 2022, he was included in an email chain between Mr Gallagher and the Respondent, in which Mr Gallagher raised the Applicant’s concerns “about the lack of detail received in the letters given to [its] members and they were not in line with previous commitments to pay in accordance with the [Agreement]”. A copy of the email chain was attached to Mr Gray’s statement. This email chain included an email from Mr Gallagher to the Respondent dated 26 April 2022, which stated:

“Hi Craig

As I imagine you are aware, our members at Meredith House have now begun receiving their termination letters and have sought advice regarding the letter’s and redundancy figures (sic).

While looking through these letters I have come across two concerns that need to be addressed urgently:

1. No payment of notice period - the letters I have viewed have stated that notice period will not be paid as notice was given on 11 March 2022, we believe this to be incorrect and that our members are entitled to their notice period under the Meredith House Agreement. The only correspondence the HSU has available dated the 11 March is a notice that the service is closing and that the employees will be effected, this letter does not amount to notice of termination. Our members have been unable to provide any alternate documentation dated 11 March 2022 which states that their employment will be terminated effective 24 April 2022.

2. No payment summary has been provided to terminated staff- this may be a matter that will soon be rectified but the letter received by our members does not provide a full breakdown of their entitlements and other moneys owed. This is of concern as the letter then goes on to state that these entitlements will be paid on the 11 May 2022 with no reference any other documentation to be provided. As you would be aware, Meredith House is obligated under their agreement and the Fair Work Act to provide a full payment summary including:

i. the employee’s classification and rate of pay;

ii. ordinary and overtime hours worked;

iii. any penalty rates payable;

iv. annual leave;

v. long service leave;

vi. accrued days off;

vii. time off in lieu;

We are requesting each employee affected be provided a full summary to ensure they have been paid correctly.

We are requesting a response to the above two matters by COB this Friday 29 April 2022…”;

•  the email chain also included an email from Mr Gallagher to the Respondent dated 27 April 2022, which stated:

“Further to my email below we have received several reports that the calculations given to our members are incorrect and below what they believe their entitlement is.

We are requesting that each employee be provided on their pay summary of the Redundancy calculation and how it was determined.

Again I am requesting a response to this email by COB Friday 29 April 2022, if a response is not received we will proceed with placing this matter into dispute.”

Legislative provisions

[47] Before determining the jurisdictional objections raised by the Respondent it is useful to set out the relevant legislative framework. In particular, ss. 738 and 739 of the Act set out provisions in the relation to the Commission dealing with disputes as follows:

“738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.

739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

Relevant provisions of the Agreement

[48] Clause 4 identifies who is covered by the Agreement and who it applies to, providing:

“4. Coverage

4.1 This Agreement shall cover the following:

(a) Meredith House Aged Care (“the employer”);

(b) the Health Services Union of New South Wales Branch (HSU NSW);

(c) the New South Wales Nurses & Midwives’ Association (NSWNMA);

(d) the Australian Nursing and Midwifery Federation NSW Branch (ANMF NSW Branch); and

4.2 This Agreement shall apply to all employees of the employer performing work within the classifications contained in this agreement and employed by a residential aged care facility of homecare or community care program run by or from an aged care facility or provider in NSW.”

[49] Clause 3.2 contains the following definition of ‘party or parties’:

“Party or parties means those covered in accordance with Clause 4 Coverage of this Agreement.”

[50] The Agreement contains a dispute resolution procedure at clause 9, which provides:

“9. Dispute Resolution Procedure

9.1 This clause sets out the procedure to settle a dispute relating to any employment matter including:

(a) a matter arising under the agreement, or

(b) the NES, or

(c) whether the employee had reasonable business grounds under subsection 65(5) of the Act (requests for flexible working arrangements) or 76(4) of the Act – (requests for extending unpaid parental leave)

9.2 In the first instance the parties must attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor. If such discussions do not resolve the dispute, the parties will endeavour to resolve the dispute in a timely manner by discussions between the employee or employees concerned and more senior levels of management as appropriate.

9.3 If a dispute is unable to be resolved at the workplace, and all appropriate steps under Clause 9.2 have been taken, a party to the dispute may refer the dispute to FWC, or other appropriate statutory tribunal.

9.4 Unless otherwise stated in this Agreement, the parties agree that FWC shall have the power to do all such things as are necessary for the just resolution of the dispute including mediation, conciliation and finally arbitration.

9.5 Where the matter in dispute remains unresolved, FWC may exercise any method of dispute resolution permitted by the Act that it considers appropriate to ensure the settlement dispute.

9.6 An employer or employee may appoint another person, organisation or association, which may include the Union/s, to accompany and/or represent them for the purposes of this clause.

9.7 While the dispute resolution procedure is being conducted work must continue in accordance with this Agreement and the Act.

9.8 Subject to work health and safety legislation, an employee must not unreasonably fail to comply, with a direction by the employer to perform work, whether at the same or another workplace that is safe and appropriate for the employee to perform.”

[51] Clause 16 deals with the subject matter of redundancy with clause 16.2 prescribing redundancy pay as follows:

“16.2 Minimum Payments

(a) Where the employee is under 45 years of age, the employer shall pay the employee

Minimum Years of Service Retrenchment Pay

Less than 1 year Nil

1 year and less than 2 years 4 weeks pay

2 years and less than 3 years 7 weeks pay

3 years and less than 4 years 10 weeks pay

4 years and less than 5 years 12 weeks pay

5 years and less than 6 years 14 weeks pay

6 years and over 16 weeks pay

(b) Where the employee is 45 years of age or over, the employer shall pay the employee

Minimum Years of Service Retrenchment Pay

Less than 1 year Nil

1 year and less than 2 years 5 weeks pay

2 years and less than 3 years 8.75 weeks pay

3 years and less than 4 years 12.5 weeks pay

4 years and less than 5 years 15 weeks pay

5 years and less than 6 years 17.5 weeks pay

6 years and over 20 weeks pay

(c) “Week’s pay” means the Employee’s average actual weekly earnings over the preceding twelve months from the date of termination, and shall include in addition to the ordinary pay any over-agreement payments and the following, if applicable

(i) shift allowances;

(ii) weekend penalties;

(iii) broken shift allowance;

(iv) sleepover allowance;

(v) any other entitlements”.

[52] Clause 15 deals with the subject matter of termination of employment with clauses 15.3 (a) – (c) and (f) stating:

“15.3 Notice of termination is provided for in the NES.

(a) Notice of termination is provided for in the NES and applies to all employees other than casual employees.

(b) Notice of termination by either the employer or employee is

Employees Period of Continuous Service Notice Requirement

Not more than 1 year one (1) week

More than 1 year but not more than 3 years two (2) weeks

More than 3 years but not more than 5 years three (3) weeks

More than 5 years four (4) weeks

(c) Where the employee is over 45 years of age and has completed two continuous years of service with the employer the employee is entitled to an additional week’s notice.

….

(f) Where the employer terminates the employment of the employee and does not

require the serving of the notice period the employer will pay the employee the amount in lieu of notice actually given by the employee.”

Consideration

[53] The Commission’s powers to deal with a dispute arise, in the case of an enterprise agreement, from the terms of the dispute settlement procedure in that enterprise agreement. In CFMEU v North Goonyella Coal Mines Pty Ltd 9the Full Bench of the Commission observed that the Commission may only deal with a dispute on application of a party to the dispute (s.739(6); is prohibited from exercising any powers limited by the dispute settlement procedure (s.739(3)); may arbitrate only if the agreed dispute settlement procedure permits it to do so (s.739(4); and must not make a decision that is inconsistent with the Act, the enterprise agreement and any other applicable fair work instrument (s.739(5)).

Objection 1: No longer an employee

[54] The Respondent has objected to the Commission dealing with the application on the basis that the dispute resolution procedure in clause 9 of Agreement no longer applies to former employees and that in order for the Commission to deal with the dispute, the employees needed to raise the dispute while they were still employed.

[55] Clause 9 of the Agreement does not expressly identify who may be a party to the type of dispute the Commission may deal with under clause 9.1, that being a dispute relating to any employment matter including a matter arising under the agreement or the NES. However the language and structure of clause 9 provides indications that the clause contemplated disputes between current employees covered by the Agreement and the Respondent employer, including:

•  clause 9.6 which refers to an “employee” being able to appoint a representative for the purposes of the clause;

•  clause 9.2 which requires, in the first instance, that parties attempt to resolve the matter by discussions between the “employee or employees concerned” and the “relevant supervisor”. If such discussions do not resolve the dispute the clause requires that the parties “endeavour to resolve the dispute in a timely manner by discussions between the employee or employees concerned and more senior levels of management as appropriate”;

•  clause 9.7 which requires work to continue in accordance with the Agreement and Act while the dispute resolution procedure is being conducted.

[56] Clause 3.2 of the Agreement provides that:

“Employee means an employer of the employer and has the meaning in the Act”.

[57] The term “employee is defined in section 12 of the Act and means a “national system employee”. A “national system employee” is an individual so far as they are employed, or usually employed, by a national system employer. A “national system employer” includes a constitutional corporation so far as it employs, or usually employs, an individual.

[58]  The meaning of “usually employed” was considered in Australasian Meat Industry Employee’s Union v Belandra Pty Ltd 10 and while that decision concerned provisions of the now repealed Workplace Relations Act 1996 (WR Act) it is also relevant in the context of the current Act. The Explanatory Memorandum to the Fair Work Bill 2008 states:

“66. The definition of national system employer includes a constitutional corporation that usually employs an individual and national system employee includes an individual usually employed by a national system employer.

67. The Federal Court considered the meaning of 'usually employed' in Australasian Meat Industry Employee’s Union v Belandra Pty Ltd [2003] FCA 910; 126 IR 165. In that case, the Court held that while an employer ceased operating for a period of time and did not have any employees during that period, it was still an employer for the purposes of then paragraph 298K(1)(c) of the WR Act. Other cases considered in that decision indicate that a casual or daily hire employee may still be an employee for the purposes of the Bill, even though their employment relationship terminates at the end of each shift or daily period of employment.”

[59] Whether a person is usually an employee or employer is a question of fact to be determined in light of all of the circumstances in each case.

[60] However, guided by the reasoning in CFMEU v North Goonyella Coal Mines Pty Ltd 11, it is apparent that the dispute settlement clause was intended to apply to current employees as a subset of person captured by the term “Employee” defined in the Agreement rather than former employees for the following reasons:

•  clause 4 of the Agreement states that it will “apply to all employees of the employer performing work within the classifications contained in this agreement and employed by a residential aged care facility of homecare or community care program run by or from an aged care facility or provider in NSW.” The Agreement therefore does not apply to persons who are no longer so employed by the employer and who are no longer performing work within the classifications in the Agreement; and

•  the requirements for workplace discussions and for work to continue could only be complied with by persons currently employed.

[61] There is therefore no capacity under clause 9 of the Agreement for a former employee or representative acting on their behalf, to initiate a dispute resolution process under clause 9 of the Agreement. Further, again following the reasoning in CFMEU v North Goonyella Coal Mines Pty Ltd 12 and for the reasons stated above, the references in clause 9 to “party” and “parties” are to be understood as those parties to the immediate dispute being the Respondent and the relevant employees as a subset of person within the definition of “party or parties” set out in clause 3.2 of the Agreement.

[62] However depending on the terms of a dispute settlement procedure in an enterprise agreement, a former employee can continue to have a dispute dealt with, consistent with the terms of the dispute settlement procedure, provided that the employee has initiated the dispute before the termination of their employment. 13

[63] In the matter of Jajoo v ING Administration Pty Ltd 14an employee, dismissed by his employer for performance and conduct reasons, alleged that he was in dispute as contemplated by the dispute resolution procedure in the enterprise agreement that applied to him when his employer terminated his employment. In the dispute notice filed with the Australian Industrial Relations Commission the employee said that he had raised with his employer the issue of whether or not his position had become redundant as a result of a restructure such that the employer was obligated to pay him severance money pursuant to the terms of the agreement and in this regard was endeavouring to follow the steps in the dispute resolution procedure. The employer objected to the application on the basis that the enterprise agreement did not apply to former employees. Senior Deputy President Drake, at first instance, found:

“[14]… I believe that Mr Jajoo does continue to have the benefit of the DRP of the Agreement, for the resolution of the matter that was in dispute at the time of his termination of employment, but only if it was already being dealt with in accordance with that clause. If Mr Jajoo was engaged in the process of settling a disputed matter in accordance with the DRP then he is entitled to continue to access the processes of the clause to its end position in relation to that matter, notwithstanding that the employer has terminated him for an unrelated matter. The disputed matter, as indicated in the notice, was “…… whether or not the position of Mr Jajoo with INGA had become redundant as a result of a restructure such that INGA is obligated to pay him severance moneys pursuant to the terms of the Agreement; ……”. In relation to the unrelated matter for which his employment was terminated, Mr Jajoo may have access to the unlawful or unfair termination processes of the Act, or whatever other remedy might be available to him.

[15]  I believe the test is whether the applicant was an employee at the time the dispute arose and the dispute resolution process was commenced. The dispute resolution process is intended to apply to disputes which arise in the course of employment between parties to the Agreement. Those pre conditions have been met in this case. Once those criteria are met the entitlement to access the process has arisen and continues limited to the matter in dispute and not affected by the subsequent termination of an employee’s employment by the employer for that matter or any other matter. Of course, the Commission must be satisfied that Mr Jajoo was engaged in the DRP before his employment was terminated”.

[16] I am not persuaded that, once an entitlement to access the DRP arises, that it can be unilaterally terminated by the termination of the relevant employees’ employment. I accept that the resignation of an employee may, in some circumstances, bring that access to an end.”

[64] On appeal, the Full Bench of the Australian Industrial Relations Commission found that in the circumstances of Jajoo v ING Administration Pty Ltd 15, the employee sought to progress a dispute under the relevant dispute settlement procedure while still employed, that dispute was unresolved when his employment terminated and there was no sound basis for construing the terms of the WR Act in a way which would deprive him of the right to progress his dispute to other levels of the procedure, including to the Australian Industrial Relations Commission, after the termination of his employment.16

[65] In this matter before the Commission is not in contention that the employment of the relevant employees terminated on 24 April 2022 and that the application with the Commission was made after this date.

[66] As noted above, the application summarises the dispute at question 2.1 of the Form F10 application with the Applicant asserting the following:

“10. HSU members did not receive notice of termination and as a result are still entitled to that period as defined in clause 15 of the agreement.

11. HSU members immediately noticed the calculations were not consistent with clause 16 of the agreement and were much lower than their entitlement.

12. HSU members were not provided with a full payment summary as required in clause 23 of the agreement and the payment date far exceeded the three business days required under clause 23.c.”

[67] The relief sought also casts light on the nature if the dispute with the Applicant seeking:

“1. Orders or recommendations that all affected employees receive pay summaries and their entitlements as per clause 23 of the agreement.

2. Orders or recommendations that all employees Redundancy calculations are recalculated by the Respondent to be consistent with clause 16 of the Agreement.

3. Orders or recommendations that the Respondent perform an audit of all sick leave taken by staff and pay any instance where it had not, and the employee had sick leave available to them.

4. Orders or recommendations that all affected employees are paid their notice period as clause 15 of the agreement.

5. Any other action the Commission sees fit.”

[68] Whether or not the provision of a payment summary pursuant to s.23(c) has been provided no later than three (3) business days is not a matter capable of being dealt with under the dispute resolution procedure in the circumstances of this matter. I understand the reference to ‘payment summary’ in the Agreement to be a reference to payment summaries that would show the payment made to employees and the amounts withheld from those payments for taxation purposes. While the Applicant had sought information from the Respondent including redundancy and entitlement calculations in writing, no mention is made of payment summaries. This is understandable given it is an obligation that the Respondent was not required to meet until after the termination of employment and it would have been known to the Applicant at that time whether the Respondent would meet that obligation. There was therefore no dispute about this matter initiated prior to employment of employees coming to an end.

[69] In relation to alleged underpayment of personal leave, while the Applicant had communicated to the Respondent that some concerns had been raised in relation to personal leave it did not provide specific details. On 1 April 2022 the Applicant indicated it would contact these staff members and pursue these matters individually if needed. Notwithstanding this, on 12 April 2022, the Applicant, ahead of a staff meeting that did not ultimately proceed, sought that the Respondent address concerns about “underpayments relating to unpaid sick leave, unpaid loadings in relation to the 12 hour shifts, overtime hours worked during the Code Red Lockdowns from 2020 to the end of their duties with the organisation, and the still unpaid Retention Bonus”. Craig Hooper responded to the concerns raised in the Applicant’s email of 12 April 2022:

•  confirming the Respondent would pay redundancies and entitlements in accordance with the Agreement;

•  advising that pay queries are acted on relatively rapidly and seeking the dates of the pay fortnight and/or “date the form was submitted” in relation to the underpayment concerns.

[70] In relation to concerns about underpayment of personal leave it can be drawn from the Applicant’s communications that if there was an underpayment affecting an individual this would be pursued at an individual level if necessary and it can be drawn from the Respondent’s communications that they were not aware of employees being told they couldn’t take personal leave and in order to address the concerns about underpayment the dates the leave form were submitted would be needed. It is unclear who the former employees who hold concerns about personal leave were and what the precise nature of their concern is or was and there is no evidence that the specifics requested by Craig Hooper in relation to the dates of pay and leave forms were provided. There is no evidence of discussions between these former employees and their relevant supervisor in accordance with clause 9.2 of the Agreement.

[71] In the circumstances of this matter it is not apparent that, prior to the termination of an employee’s employment, a dispute about personal leave had been initiated under the dispute resolution procedure in clause 9 of the Agreement. As such, the Commission does have the jurisdiction to deal with this matter. However, this does not leave any employees who have in fact been underpaid in relation to personal leave, or any other entitlement for that matter, without recourse. If there are individuals who believe they are underpaid they may be able to pursue their underpayments by contacting the appropriate regulator, the Fair Work Ombudsman, or via proceedings in a court of competent jurisdiction.

[72] Notwithstanding this, I observe that what the Applicant is seeking is not particularly controversial, being an audit of personal leave taken by staff and payment for any instance where an employee had personal leave available to them but had not been paid in relation to this entitlement. The Applicant may wish to consider looking at personal leave entitlements like this should it undertake a payroll audit in the future, particularly noting the challenges it says it confronted in relation to employee records.

[73] The residual questions that need to be determined in resolving the dispute is whether the relevant employees have been paid notice and redundancy payments in accordance with clause 15 of the Agreement which deals with notice of termination and clause 16 of the Agreement, which deals with redundancy.

[74] In determining whether the Commission has the jurisdiction to determine such a dispute, the question arises as to whether the dispute about these matters was initiated in accordance with the Agreement’s dispute resolution procedure before or after 24 April 2022 when the relevant employees were dismissed. This is a question of fact requiring engagement with the procedure followed by the Applicant, as representative of an employee or employees, in the lead up to making the application. In considering the answer to this question, it is convenient to deal with this question considering facts that are also relevant to the second jurisdictional objection below.

Objection 2: The Applicant has not followed the dispute resolution procedure

[75] The dispute resolution procedure in clause 9 of the Agreement is a broad one that enables the procedure to be utilised to settle a dispute “relating to any employment matter” including a “matter arising under the agreement” or the NES. As such, a dispute about redundancy and notice of termination is capable of being the subject of such procedure and may fall within the Commission’s jurisdiction, provided it was initiated prior to an employee’s termination and the procedure has been followed.

[76] Clause 9.2 of the dispute resolution sets out the steps that the parties are required to follow before they refer the matter to the Commission. In particular:

•  in the first instance the parties must attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor; and

•  if such discussions do not resolve the dispute, the clause provides that the parties will endeavour to resolve the dispute in a timely manner between the employee or employees concerned and more senior levels of management as appropriate.

[77] I have included in detail above the events that preceded the application to the Commission however for convenience some key events are also summarised below.

[78] It is clear that from 18 March 2022 that at least Mr Lillo was seeking information, including clarification about whether employees would be paid their termination entitlements, and this can be seen in the Employee Concerns Document which Mr Lillo indicates that employees wanted a written commitment that redundancy payments and other entitlements would be honoured, including but not limited to accrued annual leave, long service leave, time in lieu and superannuation. It is also apparent from the communications between Mr Lillo and the Applicant that Mr Lillo wanted the Applicant to have discussions with his employer about this as his representative.

[79] On 21 March 2022 the Applicant wrote to Sue Shah, Chief Operations Officer of the Respondent, via email noting that employees had raised some concerns and which provided a copy of the Employee Concerns Document. In the email of 21 March 2022, the Applicant sought that management respond to each of the points raised in the Employee Concerns Document and that employees be provided with their redundancy and entitlement calculations.

[80] On 29 March 2022, having not received a response the Applicant sent a further email to Sue Shah indicating that it had tried to contact her at various times via email and the telephone number printed on the closure announcement however it stated that the number only led to the Employee Assistance Program and that if a response was not received by close of business it would be filing a dispute in the Commission as per the Agreement’s dispute resolution clause “due to a failure to consult”.

[81] On 1 April 2022, Craig Hooper responded on behalf of the Respondent, copying Sue Shah and in this response indicated that, among other things:

•  employees would be provided with calculation details and a breakdown of their redundancy payment;

•  employees would receive a redundancy payment calculated up to 24 April 2022, depending on their service period;

•  notice of termination and redundancy payments would be in accordance with the National Employment Standards.

[82] On 26 April 2022, after termination letters had been received, the Applicant emailed Craig Hooper and advised it had come across two concerns and sought that they be resolved urgently, being:

1. no payment of notice period; and

2. no provision of a payment providing a breakdown of their entitlements and other moneys owed.

[83] On 27 April 2022, the Applicant sent a further email to Sue Shah, “Sammee” and Andrew Chia raising a concern that calculations given to members were incorrect and requesting that employees be provided with a pay summary with the redundancy calculation and how it was determined.

[84] The Respondent sought more time to respond however the Applicant ultimately made an application to the Commission on 2 May 2022.

[85] The Respondent submits that the dispute raised by the Applicant prior to the termination of the employees’ employment was in relation to an alleged failure to consult and provision of information in relation to the closure of the site and that this is acknowledged by the Applicant in its submissions. 17 Indeed the Applicant has said in its submissions that the substance of the dispute was around the closure of the site and ensuring the Respondent complied with its obligations under the Agreement through consultation.18 It seems that what the Applicant was seeking, on behalf of at least one of its members, was information that would give the employees affected by the closure some comfort that their entitlements would be paid in accordance with the Agreement.

[86] A closure of a business and redundancy process can, understandably, cause some anxiety for employees affected and it is entirely reasonable for employees affected to request information about the termination payments they would be receiving and how they would be calculated. Craig Foster’s responses indicate that employees would be paid entitlements in accordance with the Agreement and NES and provided some comfort in this regard. However, it is apparent that payment breakdowns in relation to specific employees were not provided prior to termination. This creates a complication in that the dispute before the Commission concerns the alleged incorrect payment of redundancy payment and failure to provide employees with notice of termination or payment in lieu. The disputed matter does not relate to the interpretation of the Agreement, such as whether an employee is entitled to redundancy pay for example, but whether employees were paid their Agreement termination entitlements as a question of fact. Until such time as the payments were made concerns raised about entitlements were hypothetical and the specific employees who are alleged to have been underpaid would not have been apparent until after the termination of employment when letters of termination were received, and payments were made. This distinguishes this matter from Jajoo v ING Administration Pty Ltd 19 as the employee the subject of that dispute was known prior to termination and the dispute related to the issue of whether or not his position had become redundant as a result of a restructure such that the employer was obligated to pay him severance money pursuant to the terms of the agreement. The question to be determined in that matter was whether the former employee had an entitlement, a question that arose in a dispute initiated prior to the termination, and not whether that entitlement had been correctly paid or given effect to once the former employee was terminated.

[87] In this matter the Applicant is in a difficult position, as Craig Hooper responded to the request for clarification by telling it that the Respondent would pay redundancies and entitlements in accordance with the Agreement, and it was not until after termination that any actual concerns it had about underpayment of notice and redundancy crystalised such that they could form the subject matter of the dispute before the Commission. In this regard, the dispute about whether certain employees have received notice and redundancy pay in accordance with the terms of the Agreement was not a dispute initiated prior to termination and the Commission does not therefore have the jurisdiction to determine it. A dispute about the adequacy consultation and the information provided during that process may have led to a different outcome.

[88] Another hurdle that the Applicant does not appear to have satisfied is compliance with clause 9.2 of the dispute resolution procedure, a step that the parties are required to follow before they refer the matter to the Commission. In particular, the provision requires that in the first instance the parties must attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor. Based on the materials before me I am not satisfied that discussions between the employee or employees concerned and the relevant supervisor occurred and this is a mandatory step in the procedure as evident by the use of the term “must” in clause 9.2. This is perhaps unsurprising as it would not have been apparent to the Applicant at this stage which specific employees it believed to have been underpaid such that discussions with their supervisor could occur. I am not satisfied that the Applicant has undertaken the necessary steps in the dispute resolution procedure as a precondition for referring the dispute to the Commission.

Conclusion

[89] On the basis that the Commission does not have the jurisdiction to determine the dispute, the application is dismissed, and I decline to make further orders.

[90] However, I observe that the orders or recommendations that the Applicant is seeking in relation to termination payments are not particularly controversial. The Applicant is essentially seeking that redundancy calculations are calculated in accordance with the Agreement. This is a legal requirement that the Respondent needs to comply with if it has not already done so. Further, the Applicant is seeking that former employees are paid their notice period in accordance with the Agreement. The Respondent was required to provide notice in accordance with the NES and clause 15.3(b) and (c) of the Agreement. and if it has terminated the employment of a former employee and did not require the serving of the notice period it is obliged to pay the former employee the amount in lieu of working out the notice. This is also a legal requirement.

[91] I understand from the Respondent that when the matter came before the Commission, employment records had not been handed over to the new shareholders and the new shareholders had been working with the vendor to resolve the issue. The Respondent had sought more time to find, collate, review and finalise the calculations associated with employee entitlements and redundancies and considerable time has passed to enable it to do so. Should the Applicant seek to agitate a claim in another jurisdiction, it is highly likely that a breakdown of payments will be needed to see what was in fact paid to the employees affected. I observe that a request for a payment summary, in addition to being a legal requirement as set out in clause 23(c) of the Agreement, is also a reasonable request for an employee to make of their employer in the event of termination and final pay being made.

[92] While I have found the Commission does not have the jurisdiction to deal with this dispute it is important that, if an employee believes they have been underpaid following the termination of their employment, they are able to have their concerns addressed. In this regard, if the Applicant’s allegations are substantiated, the Applicant and its members are not without redress. In particular, the Applicant may wish to raise their concern with the appropriate regulator, the Fair Work Ombudsman, or consider commencing proceedings in a court of competent jurisdiction and which has powers of enforcement in the event the Applicant and employees’ allegations of underpayment are substantiated.

COMMISSIONER

Appearances:

Mr A Gallagher for the Applicant.
Ms S Moran of SWS Lawyers Pty Ltd for the Respondent.

Hearing details:

2022.
Sydney (by Video using Microsoft Teams).
August 3.

Printed by authority of the Commonwealth Government Printer

<PR749135>

 1   Applicant, ‘Applicant’s Written Submissions’, filed 26 July, [6]-[16].

 2   Construction, Forestry, Mining and Energy Union v North Goonyella Coal Mines Pty Ltd [2015] FWC 1138, [55].

 3   Respondent, ‘Respondent’s Written Submissions’, filed 2 August 2022, [3]-[6].

 4   Respondent, ‘Respondent’s Written Submissions’, filed 7 July 2022, [10]-[18].

 5   Applicant, ‘Applicant’s Written Submissions’, filed 26 July, [6]-[16].

 6   Respondent, ‘Respondent’s Written Submissions’, filed 2 August 2022, [3]-[6].

 7   Respondent, ‘Witness Statement of Irshad (Sammee) Ali’, dated 7 July 2022, [3]-[7].

 8   Applicant, ‘Witness Statement of Emmett Levon Oswald Gray’, dated 20 July 2022, [6]-[21].

 9   [2015] FWCFB 5619.

 10   (2003) 126 IR 165.

 11   [2015] FWCFB 5619, [37].

 12   [2015] FWCFB 5619, [39].

 13   CFMEU v North Goonyella Coal Mines Pty Ltd [2015] FWCFB 5619; ING Administration Pty Ltd v Jajoo PR973602 [2006] AIRC 773.

 14   PR973602 [2006] AIRC 483.

 15   PR973602 [2006] AIRC 483.

 16   ING Administration Pty Ltd v Jajoo, Rasmin – PR74301 [2006] AIRC 773, [41].

 17   Respondent’s Written Submissions,[4].

 18   Applicant’s Written Submissions, [11].

 19   PR973602 [2006] AIRC 483.