One employer policy during COVID not enforceable

Posted on April 15, 2021

The Fair Work Commission (FWC) recently delivered an extempore decision (meaning that it was delivered orally at the conclusion of the hearing) supporting a Union’s application to challenge a decision made by an employer to restrict its employees from engaging in any other secondary or other employment[1].

The employer who operated a nursing home implemented the policy because of the high risk of cross-infection of Covid-19 if an employee has another job in a health care setting, especially in an aged care facility.

The FWC noted that there were no health orders in place that enabled the employer to apply the one employer policy.

Although the Communicable Diseases Network Australia (CDNA) had issued guidelines which stated that due to the risk of cross-infection every effort should be made to maintain consistent staff in each standalone residential care facility, the FWC noted that these were nothing more than “guidelines” and did not sanction a one employer policy.

The FWC also noted that there had not been appropriate consultation in accordance with the terms of its Enterprise Agreement and that instead the decision was made unilaterally.

The FWC also determined that it was unlawful for the employer to stand down employees without pay if they refused to adhere to the direction.

Finally, the FWC said that in implementing the 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 has also disregarded the terms of the Agreement and the NES”.

In summary the Covid-19 pandemic did not provide the employer with a unilateral right to vary or otherwise amend the employee’s conditions of employment, the terms of the Award, Enterprise Agreement or the NES.

Should you require any employment advice, please contact the workplace relations team on 8236 7688.

[1] Health Services Union v Huntingdon Nursing Home P/L [2021] FWC 1730

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