Aged care facility introduced the policy to stop spread of virus
In a recent decision, the Fair Work Commission considered a dispute brought by the Health Services Union against Sydney aged care facility, Huntington Nursing Home (“Huntington”).
The dispute dealt with Huntington’s implementation of a “one employer policy” in March 2020, which required staff to cease secondary or other employment at another aged care facility in order to continue working at Huntington. Huntington stated that the policy was in response to its “overall responsibility and duty of care to staff and residents, particularly having regard to… the spread of the COVID infection into residential aged care facilities and other places in the community”.
The Health Services Union submitted that the policy was unlawful and was implemented in breach of the nursing home’s enterprise agreement. The Commission heard from one affected employee, who worked at Huntington as a part-time music therapist. Prior to the one employer policy, the employee worked at three other aged care facilities.
The employee was forced to exhaust all paid annual and long service leave accruals. She remained on leave without pay and had received no communication about her return to work since August 2020. The Commission rejected Huntington’s submission that there was no work for her to perform, finding that this would raise issues of redundancy. Although Huntington’s policy relied on guidelines from several different bodies, the Commission was not satisfied that any of the relevant documents had legal force to enable the implementation of such a policy.
Moreover, the Health Services Union highlighted that the policy was a “major change” and that Huntington failed to consult with affected employees before implementing it, as required to do so by its enterprise agreement. Finally, Huntington submitted that the circumstances gave rise to a frustration of the employment contract. The Commission rejected this, commenting that “[f]rustration does not simply recalibrate a contract into something not originally agreed between the parties”.
“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 any award, enterprise agreement, or the NES,” the Commission concluded.
Key Takeaways:
- Employers may be required to consult with affected employees regarding “major changes” by their relevant enterprise agreement
- COVID-19 does not provide an employer with a unilateral right to vary or amend employment conditions
