The vulnerability of the aged-care sector to COVID-19 infection has caused employers to consider measures to reduce the extent to which employees work across more than one facility. A recent Fair Work Commission (FWC) decision highlights the importance of these measures complying with provisions in applicable industrial instruments and legislation.

One employer policy

In HSU v Huntingdon Nursing Home Pty Ltd (2021), the FWC dealt with a dispute concerning an aged-care employer’s policy requiring employees to choose between:

• working at its primary facility, and not engaging in any secondary or other employment at another residential aged-care facility; and
• working at another residential aged-care facility, and not working at the employer’s primary facility.

Under this ‘One Employer Policy’, if an employee refused to make an election or failed to abide by an election once made, the employer stood down the employee until further notice.

The Health Services Union challenged the policy under the dispute resolution procedure provided in the relevant enterprise agreement. The matter was referred to the FWC for determination.

FWC’s determination

The employer purported to rely on a series of documents issued by health agencies that sought to discourage workers transferring between workplaces as a means of managing the pandemic. The employer argued the Policy was consistent with its responsibility and duty of care to staff and residents.

The FWC ruled that none of the documents relied upon by the employer had 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. These guidelines did 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 regarding 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 could not justify the One Employer Policy.

The employer argued there was no work for employees who did not elect to work only at the primary facility. The FWC observed this was only the case as a result of the application of the One Employer Policy. The employer argued the circumstances gave rise to a frustration of the employment contract, such that the employer was entitled to vary the arrangements under a relevant employee’s employment contract to suit the circumstances that the employer was confronting. The FWC rejected this argument and observed that 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, nor enable the variation of a contract such that it is amended to better favour one party over another.

The FWC concluded that the relevant employees had not been properly consulted in relation to the One Employer Policy. Further, the requirement that employees give up secondary employment or be forced to run down their leave accruals was contrary to the terms of their employment contracts, enterprise agreement and the Fair Work Act 2009 (Cth) (FW Act). 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 the employer would not have been able to otherwise direct employees to take such leave.

The FWC observed that, in implementing its One Employer Policy, the employer 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 had also disregarded the terms of its enterprise agreement and the FW Act. The obligations upon an aged-care employer 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 applicable industrial instruments or laws.