The Fair Work Commission has delivered a decision on the ability of an employer to enforce a “one employer” policy.
The Health Services Union of Australia NSW Branch (HSU) filed a dispute on 22 February 2021 in the Fair Work Commission against Huntington Nursing Home Pty Ltd (Huntingdon), a residential aged care facility employer.
During the period from 21 March 2020 to date Huntingdon directed its employees to elect to work at Huntingdon or to work at another residential aged care facility(s) (the One Employer Policy).
Any employee that failed to elect or failed to abide by their election once made in relation to the One Employer Policy would be stood down without further notice.
The HSU alleged that the One Employer Policy was unlawful and sought to have the policy lifted relying upon the witness statement provided by Ms Maher (a registered music therapist employed by Huntingdon since 2006, and during that time has worked at three other aged care facilities).
In reply Huntington relied upon clause 14 of the Agreement that allowed it to suspend employees without pay.
In determining the matter the Fair Work Commission found that the clause had no application to the current facts and circumstances
It was also noted that there were no health orders in place that enabled Huntingdon to apply the One Employer Policy.
The Deputy President found 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.”
"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.
"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, of the NES."
This decision highlights the principle, that despite the COVID-19 pandemic, employers cannot unilaterally vary or amend an employee’s conditions of employment.
Employers should carefully review and consider the terms and conditions of an employee’s employment before putting in place any policy to meet its obligations in regard to infection control and duty of care.