Aged care facility’s “one employer policy” during COVID wrong

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Huntingdon Gardens residential aged care in Bexley, Sydney, broke an employees’ employment contract, enterprise agreement and the National Employment Standards when it instituted a “one employer policy” in response to the COVID pandemic.

NSW Fair Work Commission heard that Huntingdon Nursing Home Pty Ltd implemented a policy after the onset of the pandemic stating relevant employees could not engage in any secondary or other employment in another healthcare facility.

Employees who refused to decide make an election between more than one employer, or failed to abide by an election, would be stood down until further notice.

The Health Services Union (HSU) claimed that the policy was unlawful and filed a dispute under the relevant enterprise agreement, which applied only to Huntingdon employees. The HSU relied on a witness statement from Ms Maher, a musical therapist who worked every Thursday at Huntingdon and at three other aged care facilities prior to the policy being implemented.

On 21 March 2020, Ms Maher received a text from Huntingdon telling her about the policy and that she could take leave with or without pay for the relevant period. Ms Maher had not been stood down from her roles at other aged care facilities, and was told she could not return to work at Huntingdon. She used paid leave, including personal leave, annual leave and long service leave, before taking unpaid leave.

Deputy President Boyce found that in implementing the policy, Huntingdon had disregarded and acted contrary to employees’ employment contracts, the terms of the agreement and the National Employment Standards (NES). It also did not properly consult employees about the policy.

The Deputy President also found that employees had been paid, or had to elect to take paid leave accruals in circumstances where they would not otherwise have sought to take such leave or where Huntingdon would not have been able to direct them to take such leave.

“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. In doing so, it has also disregarded the terms of the Agreement and the NES,” said Mr Boyce.

“The obligations upon Huntingdon 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 an award, enterprise agreement, of the NES.”

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