The employee worked at the aged care facility since 2006 and worked one seven-hour shift a week. The employee was also employed at three other aged care facilities.

On 21 March 2020, as the COVID-19 pandemic grew in Australia, the business communicated to employees that they were implementing a ‘One Employer Policy’ (the “Policy”) preventing employees with another job in a healthcare setting from working at the employer’s facilities. The Policy stated that employees working at another facility could choose to take leave with or without pay. Any employee who failed to notify the business of a second job could be subject to disciplinary action.

On 23 March 2020, the employee notified the business of other roles they held at other aged care facilities. The business informed the employee they would not be able to work at their facility and needed to decide which leave to use. The employee chose to use her personal leave first and then annual leave.

By 8 May 2020, the employee had exhausted her paid leave and then began a period of leave without pay. Between 24 June to 17 July 2020, the business temporarily removed the Policy on the basis that the perceived risk of COVID-19 had been reduced.

On 8 August 2020, the employee contacted the business. The employee was advised they were not able to return to work. The Health Services Union - acting on behalf of the employee and other employees bound by the Policy - filed a dispute about the legality of the Policy.

The decision

The business submitted several documents to support its implementation of the Policy, including reports from the NSW government, an NDIS provider update, and the Communicable Diseases Network Australia guidelines.

The Fair Work Commission determined “none of the documents relied upon by [the business] 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.”

The Commission also concluded the requirement for the employee to take paid annual leave was unlawful, and the requirement to use personal leave was not in line with the requirements of the NES, stating, “in the overall sense, it appears that [the business] 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.”

Learnings for business

Although the COVID-19 Pandemic has had significant impacts on businesses, and in some areas the government has introduced new legislation, it is crucial for employers to continue to follow their obligations under the Fair Work Act (Cth) 2009 and other relevant industrial instruments.

How we can help

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on (03) 8662 5222. Complete members can receive unlimited general advice on a range of workplace issues including Occupational Health and Safety, WorkCover, workplace policies, disciplinary procedures and more.

The Victorian Chamber also have specialised Consultants who can assist your business with delivering training in various Workplace Relations or Occupational Health and Safety matters, drafting policies and procedures, navigating WorkCover claims and handling performance management and disciplinary issues.

[2021] FWC 1730