[2021] FWC 1730

The attached document replaces the document previously issued with the above code on 30 March 2021.

To correct minor typographical errors at paragraphs [25]; [36]; [38]; and [42].

Hannah Lawson

Associate to Deputy President Boyce

Dated: 17 May 2021

Fair Work Act 2009
s.739—Dispute resolution

Health Services Union
v
Huntingdon Nursing Home Pty Ltd
(C2021/924)

Alleged dispute under the Huntingdon Nursing Home Pty Ltd, NSWNA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017

Introduction

[1] This decision was made on an ex tempore basis on transcript on 15 March 2021. In making my decision on transcript, I reserved the right to add to or amend my published reasons for decision. An order giving effect to this decision was published on 15 March 2021 in PR727764.

[2] The Applicant, the Health Services Union of Australia New South Wales Branch (HSU) filed a dispute on 22 February 2021. The Respondent is Huntington Nursing Home Pty Ltd (Huntingdon), a residential aged care facility employer. The matter was programmed for hearing and was heard on 15 March 2021.

[3] Ms Justine Amin, Industrial Officer, appeared for the HSU. Mr Irving Warren appeared with permission that was previously granted on behalf of Huntington. Permission to appear was not opposed. The enterprise agreement that applies to the parties in relation to this dispute is the Huntingdon Nursing Home Pty Ltd, NSWNMA, ANMF NSW Branch and HSU NSW Branch Enterprise Agreement 2017 (Agreement).

[4] Relevantly, that Agreement contains a dispute procedure. I start off by noting that under Definitions and Interpretation of the Agreement, “party” or “parties” means those covered in accordance with Clause 4, “Coverage of the Agreement”. I note that the coverage includes the HSU, as well as all employees of the employer performing work within the classifications contained in the Agreement employed by a residential aged care facility or home care, or community care program run by or from an aged care facility or provider in New South Wales.

[5] It is not contentious that the Agreement covers and applies to Huntingdon and its relevant employees. It is equally not in contention that pursuant to the orders of the Fair Work Commission (Commission), the HSU, being bargaining representatives for the Agreement, are covered by the Agreement. That dispute procedure is contained relevantly at clause 9 of the Agreement. It allows for the settlement of disputes by the Commission in relation to any employment matter, including a matter arising out of the agreement. I note the term “any employment matter” is extremely broad, and includes a matter arising under the Agreement.

[6] I equally note that under clause 9.4 of the Agreement, the Commission shall have the power to do all such things as are necessary for the just resolution of a dispute, including mediation, conciliation and finally arbitration. I note that the matter came before me for conciliation, however, that conciliation was unable to resolve the dispute.

[7] The core of the dispute arises from facts that are not in contention. Effectively, those facts are that during the period from 21 March 2020 to date, Huntingdon has required relevant employees to make an election between:

(a) working at Huntingdon, and not engaging in any secondary or other employment at another residential aged care facility; or

(b) working at another residential aged care facility(s), and not working at Huntingdon.

(hereinafter One Employer Policy)

[8] If an employee chooses to refuse to make an election under the One Employer Policy, or fails to abide by an election once made, Huntingdon, for want of a better term, stands down such employee until further notice.

[9] The HSU says that the One Employer Policy is unlawful, and that any secondary employment ban should be lifted. It is not in contention that various employees have had to make an election and/or be subject to a ban from working at Huntingdon. In terms of evidence, the HSU relies upon the witness statement of Ms Belinda Anne Maher (Ms Maher). I note that Huntingdon did not cross-examine Ms Maher, and equally makes the concession in its submissions that “[w]e do not disagree with the substance of Ms Maher's witness statement”.

[10] In relation to Ms Maher, she is a registered music therapist employed by Huntingdon. She works a seven-hour shift every Thursday. She has done so since at least 20 March 2018. Prior to that, since 2006, Ms Maher was a casual employee. Ms Maher has, at all relevant times, been employed by, and working at, three other aged care facilities whilst also working at Huntingdon (i.e. prior to the One Employer Policy being implemented).

[11] On 21 March 2020, Ms Maher received a text message from Huntingdon that states:

“If you have another job in a healthcare setting, especially an aged care facility, you are required to make a decision to work in one facility only. You can take your leave, with or without pay, for this period.”

[12] Ms Maher attaches a copy of another text message at Annexure B1 to her witness statement of 4 March 2021 tendered in these proceedings. Relevantly, that text message reads:

“All staff:

Due to high risk of cross infection of COVID-19, if you have another job in a healthcare setting, especially an aged care facility, you are required to make a decision to work in one facility only. You can take your leave, with or without pay, for this period. Please inform management before Monday 23 March, 5 pm, about your choice. Disciplinary action will be taken against you if you fail to inform us about your second job.”

[13] The text message was signed off “Don”, which I understand to be Mr Chen, the Executive Director of Care Services at Huntingdon.

[14] On 23 March 2020, Ms Maher called Mr Chen, and advised him of her secondary employment.

[15] Ms Maher attests that Mr Chen said to her, “The other facilities haven't stood you down. So you won't be coming here then.”

[16] Ms Maher was then confronted with a decision as to the taking of paid leave. She requested that she utilise paid personal leave prior to taking paid annual leave. She first used paid personal leave. She then used paid annual leave. She became aware that Huntingdon had deducted 14 hours from her long service leave accruals. After she raised the issue, her long service leave was recredited, and replaced with paid annual leave (on a pro rata basis).

[17] Between 30 April 2020 and 7 May 2020 Ms Maher exhausted her paid annual leave. She then commenced a period of leave without pay. On 24 June, Huntingdon removed the One Employer Policy (including the ban on secondary employment). However, it reinstated the One Employer Policy again on 17 July 2020.

[18] For its part, Huntingdon says that it temporarily removed its One Employer Policy because it had a perception that the COVID-19 risk in New South Wales appeared to have reduced. What data that decision was actually based upon is not clear as a matter of evidence. It appears that Huntingdon was making determinations as to whether the One Employer Policy applied or did not apply based upon understandings it obtained from the community or the media (as to the status of the COVID-19 outbreak at the relevant time).

[19] Coming back to Ms Maher's evidence, she says that she has continued to have the One Employer Policy apply to her. She has used paid annual leave accruals, she has used some paid long service leave accruals, and she has taken leave without pay – which she remains on. On 8 August 2020, Ms Maher was advised that: “No, the owner is still saying not to come back to work. We will definitely let you know when you are allowed to come back to work.” There has been no further communication from Huntingdon as to when she might be able to return to work at Huntingdon.

[20] Ms Maher says that despite not working at Huntingdon for a long period of time, she still considers herself to be employed by Huntingdon, especially as she has not been told by Huntingdon that her employment has been terminated. Ms Amin from the HSU has filed some comprehensive submissions as to the position of Ms Maher, and other employees, who are subject to the One Employer Policy.

[21] Relevantly, Ms Amin points out there were no health orders in place that enabled Huntingdon to apply the One Employer Policy in the manner that it has. She also submits that the purported stand down of employees, pursuant to the One Employer Policy, under s.524 of the Fair Work Act 2009 (Cth) (Act) is unlawful.

[22] Ms Amin also points out that the requirement for Ms Maher to take paid personal carers’ leave is contrary to the provisions on the NES in relation to the taking of personal carers’ leave for reasons of incapacity or caring responsibilities. Equally, the requirement for Ms Maher to take paid annual leave or long service leave is unlawful. To the extent that Ms Maher has been required to choose to do so because of the application of the One Employer Policy is equally unlawful (especially where Ms Maher has had to access such paid leave accruals to maintain the receipt of monies (wages) she would have otherwise received had she been working at Huntingdon).

[23] Huntingdon has equally filed extensive submissions. In those submissions, Huntingdon essentially says that it has an overall responsibility and duty of care to staff and residents, particularly having regard to the COVID-19 pandemic and the various instances of the spread of the COVID infection into residential aged care facilities and other places in the community, particularly in Victoria. Pursuant to such considerations, Huntingdon is entitled to take the action that is has by applying the One Employer Policy.

[24] Huntingdon has effectively issued an edict to relevant employees that it will be applying the One Employer Policy. However, in doing so, Huntingdon has not referred me to any legal obligation to apply that policy. I note Huntingdon has attached a number of documents in support of its contentions as to the rationale or ability for it to apply the One Employer Policy.

[25] One of those documents contain guidelines published by the Communicable Diseases Network Australia (CDNA) in relation to COVID-19 outbreaks in residential aged care facilities. It is not clear what status the CDNA holds. It is not a government body, or a body pursuant to which any force of legislation applies to its guidelines or their implementation. Relevantly, the CDNA guidelines state:

“This guideline captures the knowledge of experienced professionals, provides guidance on good practice-based and the available evidence at the time of completion. Readers should not rely solely on the information contained in this guideline. The guideline information is not a substitute for advice from other relevant sources including advice from a health professional. Clinical judgment and discretion may be required in the interpretation application of these guidelines”.

“Membership of the CDNA and AHPPC and the Commonwealth of Australia as represented by the Department of Health do not warrant or represent the information in this guideline is accurate, current all complete. CDNA, AHPPC and the Department do not accept any legal liability or responsibility for any loss, damages, costs or expenses incurred by the use of or reliance on or the interpretation of the information contained in this guideline.”

“Consider the risk of when utilising casual or external agency workforces. During an outbreak, staff should not work at other facilities. Every effort should be made to maintain consistent staff in each RCF…”

“Advise staff about enhanced implementation of infection control measures, determine if staff have worked at any other aged care facility or provided any home care in the last 14 days.”

[26] The CDNA guidelines are nothing more than “guidelines”, upon which persons (aged care providers) who determine to follow them need to first obtain their own independent advice as to their legality (whether that advice is in relation to the healthcare issues, or other matters flowing into the management of the workforce, or the management of infection control at a workplace).

[27] The CDNA guidelines do not alter the onus placed upon a relevant aged care facility to implement relevant infection control measures. As part of that, a risk analysis might be conducted as to employees who work in other aged care facilities and measures to mitigate the spread of infection arising from such secondary employment. However, the guidelines themselves do not (and cannot) mandate a One Employer Policy.

[28] The second document relied upon by Huntingdon is a document focused upon “keeping Victorian residents and workers safe”. Again, it is a document expressed as containing guiding principles that are not mandatory. In summary, the document sets out or clarifies that should an aged care provider in Victoria implement relevant guideline principles, that the Commonwealth and State governments will work together with providers to attempt to ensure employees only work at one aged care facility. However, the document equally provides for the requirement for employers to properly and fairly manage that arrangement, and that government monetary assistance (by way of reimbursement of supernumerary hours paid for by another aged care facility) will be provided. In other words, even where a one employer policy may be adopted, employees should not suffer a loss of wages or entitlements.

[29] Huntingdon also relies upon a Provider Alert from the National Disability Insurance Scheme (NDIS) with updated New South Wales health guidance. It notes that “[p]roviders should minimise workers working across multiple settings.” Beyond making this statement or suggestion, nothing in the Provider Alert can be conflated with Huntingdon’s One Employer Policy.

[30] Finally, Huntingdon relies upon a New South Wales Government Health Response to the Final Report of the Independent Review into Newmarch House. Relevantly, the report states:

“The responsibility for managing an outbreak of COVID-19 or other viral and bacterial infections in aged care such as Newmarch lies principally with the residential aged care facilities operators as per the national guidelines.”

[31] It goes on to state:

“The National Guidelines state the primary responsibility for managing COVID-19 outbreaks lies with the residential care facility within their responsibilities for residential care and infection control. All RCF should have in-house or access to infection control expertise and outbreak management plans in place. Operators of facilities are being required by the Commonwealth government to prepare their staff and facilities to meet the risks of COVID-19 in line with specific Commonwealth government guidelines. The guidelines were developed in consultation.”

[32] Finally, the report notes that:

“The Commonwealth requires all operators to have robust plans in place to manage the care of residents affected by the virus and to infection control measures to protect staff and other residents from transmission.”

[33] Again, the report does no more than clarify that the Commonwealth government expects residential aged care operators to have in-house infection control expertise, or appropriate access to infection control expertise, to guide local COVID-19 outbreak management plans.

[34] In my view, none of the documents relied upon by Huntingdon have legal force or effect such as to enable it to implement or apply its One Employer Policy. Rather, these documents simply reiterate the obligations upon residential aged care providers to have infection control plans in place to manage infection, including COVID-19.

[35] Ms Amin on behalf of the HSU also highlights that the One Employer Policy is a major change, and that there has not been consultation in accordance with the terms of the Agreement prior to its implementation and application. Rather, Ms Amin submits that the One Employer Policy was a decision made unilaterally by Huntingdon absent consultation. She also points out that there has not been consultation in accordance with the requirements of the Workplace Health and Safety Act 2011 (NSW).

[36] Huntingdon made submissions as to its ability to suspend employees without pay under clause 14 of the Agreement. It submits that under clause 14.2(a)(iii) of the Agreement, employee suspensions have been enabled because relevant employees are “receiving conditions on the scope of practice that prevents them from working in the position employed”. In other words, because in this case Ms Maher’s scope of practice as a music therapist must include the ability to physically participate in activities with the residents to whom she is performing therapy for, and as this cannot be done remotely, Ms Maher can be suspended without pay. In rejecting this submission, I do not accept there to be any basis upon which clause 14 of the Agreement has any application to the facts and circumstances of this case.

[37] Huntingdon also relies upon the fact that there was no work for Ms Maher to perform, and therefore her suspension or stand-down was justified. However, there appears to only have been no work for Ms Maher to perform due to the One Employer Policy. Ms Maher, on her evidence, has always been ready, willing and able to attend the workplace. If there was actually no work for Ms Maher to perform due to operational changes, then issues of redundancy would arise. However, Huntingdon has not relied upon operational reasons in making its arguments before the Commission in this matter (rather, Huntingdon simply says that there is no work for Ms Maher to perform, because she has chosen to continue in secondary employment).

[38] Finally, Huntingdon submitted that the circumstances of this case give rise to a frustration of the employment contract, such that Huntingdon is entitled to vary the arrangements under a relevant employee’s employment contract to suit the circumstances that Huntingdon is confronting. Huntingdon did not point me to any case law supporting this assertion, and I reject it. If a contract is frustrated it is brought to an end. Frustration does not simply recalibrate a contract into something not originally agreed between the parties, or enable the variation of a contract such that it be amended to better favour one party over another.

[39] All in all, my concerns in this matter arise from Huntington’s disregard of Ms Maher's (and other employees’) employment contracts, the terms of the Agreement, and the NES. On the evidence, I conclude that relevant employees have not been properly consulted in relation to Huntingdon’s One Employer Policy. Further, I find that the election or choice that Huntingdon has required employees to make is contrary to the terms of their employment contracts, the terms of the Agreement, and the NES.

[40] Relevant employees have been paid, or had to elect to take paid leave accruals in circumstances where they would not have otherwise sought to take such leave, and/or in circumstances where Huntingdon would not have been able to otherwise direct employees to take such leave.

[41] In the overall sense, it appears that Huntingdon has, in implementing its One Employer Policy, wrongly conflated its obligations as to infection control and duty of care, with the rights and entitlements of its relevant employees under their contracts of employment. In doing so, it has also disregarded the terms of the Agreement and the NES.

[42] The obligations upon Huntingdon as to infection control and duty of care exist notwithstanding COVID-19. The COVID-19 pandemic does not provide an employer with a unilateral right to vary or otherwise amend an employee’s conditions of employment, or observe or not observe the terms of an award, enterprise agreement, or the NES.

DEPUTY PRESIDENT

Appearances:

Ms J Amin for the Applicant

Mr I Warren for the Respondent

Hearing details:

2021

Sydney

15 March 2021

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