Australian Nursing and Midwifery Federation v Johnson Stenner Aged Care Pty Limited t/a New Auckland Place
[2023] FWCFB 162
•19 SEPTEMBER 2023
| [2023] FWCFB 162 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decisions
Australian Nursing and Midwifery Federation
v
Johnson Stenner Aged Care Pty Limited t/a New Auckland Place
(C2023/2642)
| JUSTICE HATCHER, PRESIDENT | SYDNEY, 19 SEPTEMBER 2023 |
Appeal against decision [2023] FWC 943 of Commissioner Simpson at Brisbane on 21 April 2023 in matter number C2022/8153.
Introduction and background
The Australian Nursing and Midwifery Federation (ANMF) has filed an appeal against a decision of Commissioner Simpson issued on 21 April 2023.[1] In the decision, the Commissioner resolved by arbitration, pursuant to s 739(4) of the Fair Work Act 2009 (Cth) (FW Act), a dispute regarding whether registered nurses, enrolled nurses and assistants in nursing have an entitlement to payment under the terms of the Johnson Stenner Aged Care Enterprise Agreement 2021 (Agreement) in respect of time spent undertaking COVID-19 Rapid Antigen Tests (RATs) in accordance with the direction of their employer, Johnson Stenner Aged Care Pty Limited (Johnson Stenner). The ANMF requires permission to appeal.
The factual background to the proceedings is set out in an Agreed Statement of Facts (ASF) filed in the proceeding before the Commissioner:
PRELIMINARY
1.The parties agree on the following facts for the purpose of this proceeding.
BACKGROUND
2.The Applicant is a registered trade union with coverage of registered nurses, enrolled nurses and assistants in nursing employed in residential aged care facilities in the State of Queensland.
3.The Respondent is a national system employer of employees who delivers services in residential aged care in Gladstone, Queensland.
4.The Johnson Stenner Aged Care Enterprise Agreement (AG2021/8708) (the Agreement) covers and applies to the Applicant, the Respondent and employees engaged as registered nurses, enrolled nurses, assistants in nursing (nursing staff) and other positions in the classifications contained in Schedules A and B of the Agreement, including members of the Applicant.
5.The Applicant and the Respondent made attempts to resolve the dispute at the workplace level through correspondence dated 24 October 2022 and 4 November 2022. Copies of the correspondence dated 24 October 2022 and 4 November 2022 are ‘Attachment 1’ and ‘Attachment 2’ respectively.
6.The Applicant and the Respondent were unable to resolve the dispute at the workplace level.
DIRECTION TO PERFORM RAPID ANTIGEN TESTS
7.On 7 July 2022, the Respondent issued a ‘communication note’ to all staff labelled ‘Staff Self RAT Testing’ and an attachment labelled ‘Staff Self RAT Testing Requirements’. A copy of this communication note and Attachment is ‘Attachment 3’.
8.On 18 July 2022, the Respondent sent a text message to all staff stating that staff will be required to complete a Covid-19 Rapid Antigen Test (RAT) prior to every shift effective 19 July 2022. A copy of this text message is ‘Attachment 4’.
9.On 7 November 2022, the Respondent published a memo to all staff referring to a continuing requirement of staff to complete a RAT daily prior to their shift. A copy of this memo is ‘Attachment 5’.
10.From 19 July 2022, the Respondent has required its nursing staff to:
a.Collect and take home RATs that have been supplied by the Respondent,
b.Complete a RAT prior to commencing each rostered shift.
c.Take a photo of their completed RAT with their name and the date.
d.Show the photo of the RAT to a person nominated by the Respondent at, or prior to, the commencement of their rostered shift.
11.Notwithstanding paragraph 8, nursing staff who test positive for Covid-19 are not required by the Respondent to complete RATs for 28 days following their positive test.
12.Since July 2022, the Respondent has, from time to time, allowed staff members to complete a RAT during working hours, if that staff member has advised that they are unable to complete the RAT prior to the commencement of their rostered shift.
13.Since 7 July 2022, the Respondent has not paid any nursing staff member for undertaking a RAT prior to the rostered start of a shift.
ROSTERS
14.The Respondent produces a fortnightly roster of the daily ordinary working hours and starting and finishing times of nursing staff, as required by clause 24.2 of the Agreement.
15.This roster is displayed on the noticeboard in the staff room prior to the commencement of the roster period.
16.The time spent by nursing staff in completing RATs is not included in the rosters displayed by the Respondent.
RAPID ANTIGEN TESTS
17.As a residential aged care facility, the Respondent’s workplace is considered to be a ‘high-risk setting’ by the Queensland Government, as it is an environment where people are more vulnerable or at higher risk of severe disease or higher risk of widespread transmission of Covid-19.
18.The Australian Government provides RAT kits to residential aged care facilities in Queensland, including the Respondent, with a recommendation that they be used for:
a.testing of all residential aged care staff, including volunteers and subcontractors; and
b.testing regular visitors on arrival at the service, including family and friends of residents, visiting allied health and other service providers.
19.Since July 2022, the Respondent has supplied RATs to employees free of charge. Employees have also been able to obtain RATs from the Respondent free of charge for members of employees’ families and households to undertake RATs.
20.The RATs that are supplied to employees by the Respondent are manufactured by MP Biomedicals.
21.The RATs are packaged with a pamphlet containing the manufacturer’s instructions for use, which are on page 2. A copy of page 2 of MP Biomedical’s pamphlet is ‘Attachment 6’.
CONTRACT OF EMPLOYMENT
22.The Respondent’s nursing staff are employed according to a standard form employment contract. A copy of the standard contract is ‘Attachment 7’.
23.Nursing staff employed by the Respondent are required to adhere to the organisation’s code of conduct. A copy of the Respondent’s code of conduct is ‘Attachment 8’.
HAND HYGIENE
24.The Respondent has implemented standard and transmission-based precautions to prevent and control infection, including by ensuring its employees maintain appropriate hand hygiene. This has been achieved through the provision of educational material and mandatory training.
25.The World Health Organisation’s hand washing instructions are displayed at the Respondent’s New Auckland Place facility at the hand washing stations. A copy of the World Health Organisation’s hand washing instructions is ‘Attachment 9’.
(attachments omitted)
The precise questions for arbitration were not wholly agreed between the parties.[2] The two questions ultimately put by the ANMF were:
1.In complying with the Respondent’s direction to undertake a COVID-19 Rapid Antigen Test prior to commencing their rostered shift, were the Registered Nurses, Enrolled Nurses and Assistants in Nursing employed by the Respondent:
a. performing work to which the Johnson Stenner Aged Care Enterprise Agreement 2021 applied?
b. entitled to be paid wages for the time spent complying with the direction?
2. If the answers to questions 1 (a) and (b) are “yes”, is an employee who complied with the RAT direction, and is either a full-time nursing employee (but not at Registered Nurses Level 4 or 5) or a part-time nursing employee, entitled to be paid at the relevant overtime rate specified in clause 27?
Johnson Stenner contended before the Commissioner that question 2 could not properly be answered on the evidence. Ultimately, the Commissioner’s answers to question 1 meant that he did not need to answer question 2.
In his decision, the Commissioner recorded the submissions of the parties in considerable detail. The argument advanced by the ANMF below may be summarised as follows:
(a)the question of whether the nursing staff are ‘performing work’ for the purposes of clause 4 of the Agreement when they comply with the RAT direction will determine whether the Agreement applies to this activity;[3]
(b)clause 11.1 of the Agreement allows the employer to direct an employee to carry out such duties that were within the limits of the employee’s skill, competence and training, consistent with the respective classification;[4]
(c)Johnson Stenner’s RAT direction to all of its nursing employees required the performance of duties by those nursing employees that are within the limits of their skill, competence and training, consistent with the respective classification;[5]
(d)the classification descriptors in the Agreement refer to ‘Nursing Care’, which is defined to include ‘the promotion of health, prevention of illness, and the care of ill, disabled and dying people [and] advocacy, promotion of a safe environment, research, participation in shaping health policy and in patient and health systems management’;
(e)the RAT direction was issued to staff as an infection control measure, to prevent the spread of illness (specifically of COVID-19) and to promote a safe environment and was therefore ‘work”;[6]
(f)whenever the nursing staff comply with the employer’s RAT direction, they perform that duty under the instruction of the employer. For that period of time, they are not conducting private activities;[7]
(g)the terms of the standard employment contracts issued by Johnson Stenner do not contain any express term about service earning wages, therefore contractually the service that earns wages is simply the obedience to instructions given by the employer;[8]
(h)the direction to perform the work away from the employer’s premises, rather than on the premises, does not change the fact that the employer requires the employee to provide services within a period of time (prior to their rostered start time) and at a specified location (away from the employer’s premises);[9]
(i)the RAT was a pre-commencement activity necessary to ready the employee for work, was not to the employee’s benefit, and therefore constitutes work;[10] and
(j)it typically takes nursing staff at least 20 minutes per day to comply with the RAT instructions.[11]
Johnson Stenner argued that:
(a)the key question is whether the employees are ‘performing work’ when completing a RAT;[12]
(b)‘time worked’ could include time spent standing and waiting under a continual duty to act if called upon, and includes ‘doing, whatever it is that he is doing, upon instructions, express or implied given to him by his employer’;[13]
(c)by contrast, a worker who is ‘on call’ is not working until they are called to attend for work because a worker cannot be on call and at work at the same time;[14]
(d)similarly, recall payments only follow ‘a conscious decision by or on behalf of an employer to require an employee to perform specific duties of employment outside the employee’s ordinary hours of duty’;[15]
(e)the word ‘works’ or ‘worked’ must mean being physically at work and performing work or other functions associated with work, at the employer’s direction;[16]
(f)the undertaking of a RAT is not an activity performed for the sole benefit of Johnson Stenner because there is a public health benefit for all persons associated with a residential aged care facility;[17]
(g)the general obligation in the standard contracts of employment to comply with lawful directions by the employer cannot serve to extend the concept of ‘work’ under the Agreement as contended by the ANMF;[18]
(h)each of the authorities relied on by the ANMF can be distinguished by their factual circumstances;[19]
(i)the ANMF has not identified any authority that has extended the concept of ‘work’ or ‘time worked’ to a situation that is similar to the circumstances in this matter;[20] and
(j)given the prevalence of RATs in Australia as a result of the COVID-19 pandemic and the frequency of testing required for aged care employees, the amount of time actually required for an employee to undertake a test would, in any event, be considered to be de minimis.[21]
In reply the ANMF argued:
(a)Johnson Stenner’s argument that work can only occur when the employer has directed the employee to be at a particular place and at specific times is not viable, nor is it supported by the authorities cited;[22]
(b)the primary indicator of whether an employee is performing ‘work’ is whether the employee is under the ‘instruction or direction of their employer’ while performing the task, and whether that task is consistent with the employee’s employment;[23] and
(c)Johnson Stenner’s very narrow definition of ‘work’ is incompatible with the reality of the modern workplace.[24]
The submissions and the Commissioner’s consideration referred heavily to the Commissioner’s earlier decision in Australian Nursing and Midwifery Federation v Jeta Gardens (QLD) Pty Ltd[25] (Jeta Gardens). The applicable terms of the enterprise agreement considered in that matter were almost identical to those here. In Jeta Gardens, a dispute arose over payment to staff who were directed to undertake a RAT each day before commencing work. Paragraph [42] of the Commissioner’s decision under appeal here summarises the three scenarios he considered in Jeta Gardens:
(a)Employees were first requested (but not directed) to complete a RAT prior to entry to the facility each day they were rostered to work. There was no requirement for employees to be at the workplace at a specified time prior to the commencement of their shift to complete a RAT, or to undertake a RAT within any specified time period before their start time. (Scenario 1)
(b)Employees were then at a later time directed to complete a RAT prior to entry to the facility each day they were rostered to work. There was no requirement for employees to be at the workplace at a specified time prior to the commencement of their shift to complete a RAT, or to undertake a RAT within any specified time period before their start time. (Scenario 2)
(c)Employees were then directed to arrive at the facility 15 minutes before their rostered start time, complete a RAT, and remain in a designated testing area for 15 minutes until the RAT result was known each day they were rostered to work. (Scenario 3).
In Jeta Gardens the Commissioner found that employees were not entitled to payment for any time taken undertaking RATs prior to the commencement of shifts in Scenarios 1 and 2, but the duties were covered by the agreement and employees were entitled to payment in Scenario 3 — being when staff were required to attend designated testing areas at the workplace as a condition of entry 15 minutes before their rostered shift. The Commissioner’s decision in Jeta Gardens was not appealed.
The decision under appeal
In his decision the Commissioner found that:
(a)Undertaking a RAT as directed by the employer is an infection control measure that is the performance of a duty capable of falling within the coverage of the classification descriptors in the Agreement.[26]
(b)The nurses in this case are not under a continual duty to act when they take a RAT home and can choose to undertake the test at a time convenient to them. Once a nurse undertakes the steps in the test they are free for a period of approximately 15 minutes until they must return and examine and record the test result.[27]
(c)‘Work’ is not limited to duties required to be undertaken by the employer at a certain place and at a particular point in time.[28]
(d)The undertaking of RATs benefits all persons associated with the aged care facility, including Johnson Stenner, its employees, its residents, visitors, and other personnel who enter the facility. Undertaking RATs safeguards the safety of all persons at the facility by ensuring that COVID-19 does not enter the facility.[29]
(e)When a RAT is done under the employer’s direction it is not to be regarded as a ‘private activity’.[30]
(f)The direction of the employer that employees undertake a RAT is a lawful and reasonable instruction.[31] Even if the employees are not entitled to payment the direction is nonetheless reasonable ‘given the present risk of COVID-19 in Queensland and the vulnerability of the residents for whom the nursing staff provide care, and such a direction is consistent with Government recommendations to conduct such tests and obligations under workplace health and safety law’.[32]
(g)Undertaking a RAT at another location such as at home can be distinguished from the circumstances in Scenario 3 in Jeta Gardens because in that case employees were directed to report to work 15 minutes early and were advised that failure to do so could lead to disciplinary action.[33]
(h)A reasonable approximation of the time taken to undertake the RAT prior to the 15-minute waiting period would be no more than a few minutes.[34]
(i)The estimated time of a few minutes could not properly be described as de minimis.[35]
(j)Whether or not activities will constitute work will depend upon the construction of the relevant industrial instrument and whether it makes a specific provision for the activity in question, and the facts in the case.[36]
The Commissioner’s central reasoning is found in the following paragraphs of his decision:
[135] Clause 11.2 in respect of Full-Time employees, and 11.3 in respect of Part Time employees sets out arrangements for hours of work. Clause 11.5 provides that casual employees are engaged on an hourly basis with a minimum three-hour engagement.
[136] Part 5 of the Agreement is titled ‘Hours of Work and Related Matters’. Contained within Part 5 are clauses dealing with the ordinary hours of work (clause 21); Span of Hours (clause 22); Breaks Between Shifts (clause 23); Rosters (clause 24); Saturday and Sunday work (clause 25); Breaks (clause 26); Overtime (clause 27); Shiftwork (clause 28); and Higher Duties (clause 29).
[137] I have considered the hours of work arrangements in the Agreement in their totality. That includes considering matters such as shift length, ordinary hours within a roster cycle, the span of ordinary hours, the requirement to pay overtime if a rest break of 10 hours between one work period and the commencement of another is not afforded (with certain exceptions), the triggering of overtime penalties where an employee works in excess of 10 hours per day, or 38 hours per week, or 76 hours per fortnight, or recall to work arrangements. It is apparent that the Agreement intends that work on a day be continuous except for meal breaks, noting that there is a provision in the Agreement for an employee to be paid an allowance to be on call.
[138] In my view it is apparent that the Agreement is not intended to be read as covering duties performed remotely from the employer’s workplace and outside a shift or other specified work period as designated by one of the clauses contained in Part 5. The exception to that is when an employee is receiving an on-call allowance when an employee is on call at their private residence or other agreed location.
…
[141] The Agreement in this case does not encompass payment for certain incidental duties, including for example, time taken for example to maintain professional registration, as required under the contract. It follows that the employees when undertaking a RAT in the manner in the specific circumstances of this case, as directed by the employer at a time of their own choosing before the commencement of their rostered hours of work, are not ‘performing work’ as contemplated by clause 4 of the Agreement, and are not covered by the Agreement at that time.
[142] On that basis the answer to the questions for arbitration are as follows:
1. In complying with the Respondent’s direction to undertake a COVID-19 Rapid Antigen Test prior to commencing their rostered shift, were the Registered Nurses, Enrolled Nurses and Assistants in Nursing employed by the Respondent:
a.performing work to which the Johnson Stenner Aged Care Enterprise Agreement 2021 applied? No.
b.entitled to be paid wages for the time spent complying with the direction? No.
[143] Having concluded the answers to question 1(a) and 1(b) is no, the answer to question 2 must be no because the Agreement does not apply to the disputed activity.
(emphasis added)
Grounds of appeal and submissions
The ANMF advanced five grounds of appeal:
1. The Commissioner erred in law in applying an improper construction of the Agreement to the facts, namely that performance of duties of taking a RAT at the direction of the employer away from the workplace did not give rise to an entitlement to payment for that work because of the hours of work arrangements (at [135]-[138]).
2. The Commissioner erred in law in applying an improper construction of the Agreement to the facts, namely in failing to find that taking a RAT is the work of nursing care within the meaning of the Agreement, rather than an ‘incidental duty’ as determined at [141], and therefore is work that attracts payment under the Agreement.
3. The Commissioner erred in drawing conclusions or inferences that were not reasonable or logical to the effect that taking a RAT at the direction of the employer was not performing work and was an incidental duty which did not require payment for the time engaged in that work in circumstances where the Commissioner found that:
(a)a RAT is an infection control measure that is the performance of a duty falling within the coverage of the classification descriptors in the agreement (at [118]);
(b)work is not limited to duties required by the employer to be undertaken at a certain place and at a particular time (at [122]);
(c)a RAT performed under the direction of an employer is not a private activity (at [124]);
(d)a direction to take a RAT is a lawful and reasonable direction under the employment contract and at common law (at [128]);
(e)undertaking a RAT was not a de minimis activity (at [133]).
4. The Commissioner erred in failing to give weight or sufficient weight to the relevant consideration that taking a RAT is nursing care under the Agreement.
5. The Commissioner erred in giving weight to the irrelevant matters:
(a)of the hours of work provisions in the Agreement (at [135]-[137]);
(b)of the difficulty in the calculation of the quantum of the payment in the event that the Applicant’s argument was accepted (at [127]);
(c)that the employee could take the RAT at a time of the employee’s choosing and was able to engage in other activities while awaiting the test result (at [119]).
The ANMF submitted that the Agreement applies to all employees ‘performing work within the classifications contained in this agreement’ (per clause 4). The classifications are defined in Schedule A (Nursing Classification Definitions) and Schedule B (Aged Care Classifications). The ANMF’s members are employed in the classifications in Schedule A and the dispute is limited to the terms of the Agreement and Schedule A.
The ANMF submitted that the Commissioner erred by not properly examining, construing and appreciating the consequences of the text of clause 4 and Schedule A and the result of the text, which is that a nurse is to be paid for the performance of the duties of ‘nursing care’. Nursing care to persons is said to be the central and core duty performed by nurses. The text does not restrict the entitlement to be paid for duties performed by placing limitations on the location or the time at which those duties are performed.
The ANMF said that the Commissioner’s finding at [138] that ‘the Agreement is not intended to be read as covering duties performed remotely from the employer’s workplace and outside a shift or other specified work period as designated by one of the clauses contained in Part 5’ was in error. The ANMF said that ‘provisions [of the Agreement] were impermissibly used as contextual factors to imply restrictions on the payment for performance of duties, that is restrictions if duties were performed remotely or outside shift or other specified work periods.’
The Commissioner was said to have filled a perceived gap by implying a term in the Agreement to the effect that nursing duties that otherwise attract payment under the Agreement do not attract payment if performed at a location outside of the workplace or at a time outside the ‘shift or other specified work period.’ The ANMF said that the ‘stringent prerequisites’ set down by the High Court in BP Refinery (Westernport) Pty Ltd v Shire of Hastings[37] for the implication of terms have not been met.
As to the Commissioner’s conclusion that undertaking a RAT was an incidental duty, the ANMF said:
The Commissioner refers to the concept of ‘incidental duties’ without explaining its relevance to the matter before him. The Commissioner had earlier found that infection control measures such as taking a RAT were duties under Schedule A, consistent with the finding in Jeta Gardens. Whether they are incidental, core, primary secondary or some other category, the entitlement to payment arises on the proper construction of the Agreement because the activity is nursing care as defined in the Agreement.
[citations omitted]
Finally, the ANMF submitted that the Commissioner’s ultimate conclusions were ‘counterintuitive’ in light of his other findings listed in appeal ground 3.
Unhelpfully, Johnson Stenner declined to make any submissions in the appeal.
Consideration
Permission to appeal
We have decided to grant permission to appeal because the matter raises issues of general importance. The COVID-19 pandemic has required many significant changes to workplace arrangements that could not have been contemplated by parties making enterprise agreements. Although this appeal must necessarily be determined by reference to the terms of the Agreement, we are satisfied that it is in the public interest to consider and determine the matters raised in the appeal.
Merits of the appeal
This appeal is concerned with the proper construction of the relevant provisions of the Agreement. The decision under appeal did not involve the exercise of discretion. The answer given by the Commissioner to the proper construction of the Agreement is either correct or incorrect. In this regard the appeal is to be determined by reference to the ‘correctness standard’.[38]
It is not in dispute in this appeal that Johnson Stenner’s direction for employees to undertake RATs prior to attendance at work was within the scope of their employment and was lawful and reasonable. The question for determination is whether the Agreement provides for an entitlement to payment for the time spent by employees in undertaking RATs. The Agreement contains no provision specifically dealing with undertaking RATs and, accordingly, whether an entitlement to payment exists must be ascertained by reference to the general provisions of the Agreement concerning payment for work performed.
At the outset, it is necessary to state that we do not agree with the Commissioner’s conclusion (in paragraphs [138] and [141]-[142]) that the Agreement does not ‘cover’ or ‘apply’ to the relevant employees when undertaking the required RATs. Clause 4, Coverage of the Agreement relevantly provides:
This Agreement shall apply to all employees of the employer performing work within the classifications contained in this agreement and employed by the employer in Queensland.
The Agreement plainly covers the relevant employees, and consequently applies to them in relation to their employment with Johnson Stenner in accordance with s 52 of the FW Act, by virtue of the fact that the employees perform work within the classifications contained in Agreement. We do not consider that the issue in dispute is resolvable by reference to the scope of coverage of the Agreement. The ANMF’s question 1(a), which the Commissioner attempted to answer, was misconceived and did not properly relate to the real issue in dispute, which was sufficiently encapsulated by question 1(b).
We agree with the ANMF, as did the Commissioner (at [118]), that the task of complying with Johnson Stenner’s RAT direction prior to attendance for work fell within the duties described in the ‘Nursing Classification Definitions’ applying to the relevant employees set out in Schedule A to the Agreement. The key aspect of Schedule A is that employees at each classification level are described as performing ‘Nursing care’, which expression is defined as follows:
Nursing care means:
•the autonomous and collaborative care of individuals of all ages, families, groups and communities, sick or well and in all settings.
•Nursing includes the promotion of health, prevention of illness, and the care of ill, disabled and dying people.
•Advocacy, promotion of a safe environment, research, participation in shaping health policy and in patient and health systems management, and education are also key nursing roles.
•any intervention or activity on a care plan that is provided by a registered nurse, enrolled nurse or assistant in nursing
•carrying out activities which are directly related to the maintenance of a person’s bodily needs where that person is unable to carry out those tasks for themselves; and/or
•assisting a registered nurse to carry out the work described in A.4.
(underlining added)
The terms used in the above definition are very broad, such as ‘promotion of health’, ‘prevention of illness’ and ‘promotion of a safe environment’, and would certainly encompass undertaking a RAT at the direction of the employer, which the Commissioner characterised as an ‘infection control measure’ protective of ‘all persons associated with the aged care facility, including the Respondent, its employees, its residents, visitors, and other personnel who enter the facility’.[39] However, the mere fact that undertaking a RAT would fall within the scope of the applicable classification descriptors does not by itself ground an entitlement to payment. The purpose of the classification descriptors in the Agreement is fourfold:
(1)As earlier stated, the scope of the coverage of the Agreement in clause 4 operates by reference to employees who perform work within the classifications in the Agreement.
(2)Clause 11.1 provides that the employer ‘may direct an employee to carry out such duties that are within the limits of the employee’s skill, competence and training, consistent with the respective classification’ (underlining added). Thus, the classification descriptors serve to inform what duties an employee may reasonably and lawfully be required to perform.
(3)The classification of the employee serves to identify which of the hourly rates of pay specified in Schedule C applies (see clauses 11.5(b), 15 and 29).
(4)The applicability of a number of allowances are dependent on the classification of the employee (see clauses 17.2 and 17.4-17.6).
The Agreement nowhere provides that there is an entitlement to payment for any time spent performing any duty whatsoever which may fall within the classification descriptors.
Before we turn directly to those provisions of the Agreement which establish an entitlement to payment, it is necessary first to identify a number of characteristics of the task of undertaking a RAT in accordance with Johnson Stenner’s requirement. First, the RAT is required to be undertaken prior to the commencement of the ordinary hours of work for the day. Second, subject to the exception identified in paragraph 12 of the ASF, the direction contemplates that the RAT will be undertaken at the employee’s home (or at least some location away from the workplace). Third, as a consequence, the RAT will be undertaken during a period that is discontinuous with the performance of ordinary hours and overtime at the workplace. Fourth, although the ANMF contended that the period of time required to undertake a RAT was about 20 minutes, the Commissioner made a finding (not challenged in the appeal) that ‘once a nurse undertakes the steps in the test they are free for a period of approximately 15 [minutes] until they must return and examine and record the test result’.[40] This means that the relevant employees may engage in private activity and are not otherwise subject to employer direction during this period. Fifth, as again the Commissioner found (at [119]), once an employee takes the RAT supplied by the employer home, they can choose to undertake the test at a time convenient to them. If an entitlement to payment is to be located in the Agreement, it must be conformable with these identified characteristics of the duty in question.
Three broad categories of entitlement to payment may be discerned in the Agreement:
(1)Payment for ordinary hours of work. For full-time employees, ordinary hours of work are 38 hours per week, or an average of 38 hours over a period of up to four weeks (clause 21.1). For part-time employees, ordinary hours are those agreed on in writing at the commencement of employment, which must be less than full-time hours (clause 11.3(a) and (b)). For all employees, other than shift workers, ordinary hours may not exceed 10 hours on any one day (clauses 21.2 and 21.3) and must, except for shiftworkers, be worked between 6:00 am and 6:00 pm Monday to Friday (clause 22.1). In addition:
·except for meal breaks, the ordinary hours of work on any day must be continuous, except in respect of additional shifts that have become available on a day due to illness or an emergency (clauses 21.5 and 21.6);
·an employee must generally have a rest break of 10 hours or, in some cases, eight hours between ordinary work periods or shifts, with the shift following the break to be paid at overtime rates if this is not afforded (clause 23);
·employees’ daily ordinary working hours and starting and finishing times must be set out in a weekly or fortnightly roster (clauses 24.1 and 24.2); and
·part-time employees must be rostered for at least four hours per engagement, or two hours for ‘mutually agreed resident escort duty’ (clause 11.3(c)), and casual employees must be paid a minimum of three hours per engagement (clause 11.5(c)).
(2)Payment for overtime for work performed in excess of 10 hours per day or 38 hours per week or 76 hours per fortnight (clauses 27.1 and 27.2). Overtime must be approved prior to it being worked (clause 27.1(a), and the overtime rate does not apply to the classifications of Registered Nurse levels 4 and 5 (clause 27.1(b)). In addition:
·clause 27.4 requires a 10-hour break after the completion of overtime, or the payment of double time upon resumption of duty until release from duty and then a 10-hour break without loss of pay; and
·clauses 27.6 and 27.7 provide for the payment of overtime when an employee is ‘recalled to work’ in prescribed circumstances, and clause 27.8 provides for the provision of transport to and from home, or the payment of a transport allowance, when an employee is ‘recalled to work overtime’.
(3)Allowances for various specified duties and circumstances (clause 17).
The ANMF’s appeal submissions did not squarely identify the source of the entitlement to payment in the Agreement which it contended applied to undertaking a RAT. In respect of the three categories of payment for which the Agreement provides, we do not consider that any of them can be construed as applicable to undertaking a RAT in the circumstances set out in paragraph [28] above. In respect of ordinary time, it is clear that undertaking a RAT is plainly incompatible with the incidents of the working of ordinary time provided for in the Agreement:
(a)Because the RAT may be undertaken at any time between shifts at the convenience of the employee, Johnson Stenner cannot ensure that, at least for day workers, it is taken within the span of ordinary hours prescribed by clause 22.1.
(b)It cannot be rostered in the way contemplated by clauses 24.1 and 24.2.
(c)It is not worked continuously with other ordinary hours of work, as required by clause 21.5.
(d)Unless treated as somehow attached to the shift worked either before or after the RAT is undertaken, it cannot conform with the rest break requirement in clause 23.
(e)Again, unless treated as somehow attached to the shift worked either before or after the RAT is undertaken, the minimum daily rostering requirements for part-time and casual employees in clauses 11.3(c) and 11.5(c) respectively cannot be complied with.
In relation to overtime, a similar fundamental incompatibility with the overtime provisions of the Agreement exists. As a general proposition, the established industrial conception of overtime is that (subject to any meal break requirement) it is worked continuously upon the completion of ordinary hours in a day, or worked as a discrete overtime shift, or is worked upon the employer recalling the employee to work after they have already completed their ordinary hours and left the workplace. Clause 27 is constructed in a way that is consistent with this conception, noting the existence of specific recall to work provisions in clauses 27.6‑27.8, which contemplate that a recall to work requires a return to the workplace. Undertaking a RAT at a time of the employee’s choosing away from the workplace and discontinuously with the performance of work at the workplace is discordant with this conception. More specifically, because the RAT will generally be undertaken at some time prior to the performance of work on each rostered work day, it will be unlikely that the precondition for the payment of overtime — that is, that work has been performed in excess of 10 hours in a day or 38 hours in a week or 76 hours in a fortnight — will have been met. For example, if a full-time employee is rostered to work five days of 7.6 hours each per week, then the precondition will not have been met on any day when a RAT is undertaken prior to the commencement of work. In addition, the employer would presumably be incapable of providing a 10-hour break after each occasion a RAT is undertaken, and the Agreement cannot reasonably be read as intending that, as a result, the employee is to be paid at double time for their following shift and then receive a further 10-hour absence from duty without loss of pay.
As for allowances, it is plain that none of the allowances for which clause 17 provides is applicable to undertaking a RAT. The ANMF did not contend otherwise.
We conclude on the basis of the above analysis that undertaking a RAT in the circumstances described in paragraph [28] above does not attract payment under the Agreement either as ordinary time or overtime or by way of an allowance. The payment provisions of the Agreement simply do not contemplate payment for performance of a duty of this nature.
We do not accept the ANMF’s submission that the Commissioner’s conclusion, with which we agree for the reasons stated above, was ‘counterintuitive’. Not every incident of employment duty attracts an entitlement to payment under the applicable industrial instrument. Employment will often involve minor and incidental duties being required to be performed outside of working hours without payment, such as making or answering occasional telephone calls about work attendance and rostering matters or dressing in uniforms required to be worn by the employer. In the case of nursing staff, there is usually an explicit or implicit requirement to take the steps necessary to maintain professional registration outside of working hours, but this does not attract any separate entitlement to payment either under the Nurses Award 2020 or under the Agreement (as the Commissioner observed at [141]). Here, where undertaking a RAT takes a few minutes at best and may be undertaken at home at a time of the employee’s choosing, it does not appear to us to be surprising that the Agreement provides for no applicable entitlement to payment.
We emphasise that the conclusion we have reached pertains to the specific circumstances described in paragraph [28]. As the Commissioner found in Jeta Gardens, undertaking a RAT in accordance with the employer’s direction in different circumstances may lead to a different conclusion being reached. We also observe that it would be open for the parties to negotiate a specific payment for undertaking a RAT in a future enterprise agreement.
Orders
We order as follows:
1. Permission to appeal is granted.
2. The appeal is dismissed.
PRESIDENT
Appearances:
S Reidy, counsel, instructed by C Trevascus, for the Australian Nursing and Midwifery Federation.
[There was no appearance for Johnson Stenner Aged Care Pty Limited.]
Hearing details:
2023.
Sydney, with video link using Microsoft Teams:
July 17.
[1] [2023] FWC 943.
[2] Ibid at [8]-[12].
[3] Ibid at [14].
[4] Ibid at [15].
[5] Ibid at [16]-[21] citing Australian Nursing and Midwifery Federation v Jeta Gardens (QLD) Pty Ltd T/A Jeta Gardens [2022] FWC 3039 at [320].
[6] [2023] FWC 943 at [21]-[22] citing Seo v Bindaree Food Group Pty Ltd [2021] FWCFB 2691 at [43] and [46].
[7] [2023] FWC 943 at [25]-[26] citing Warramunda Village Inc v Pryde [2002] FCAFC 58 at [17] and [37].
[8] [2023] FWC 943 at [78]-[79].
[9] Ibid at [26].
[10] Ibid at [27] and [67]-[69] citing Shop, Distributive & Allied Employees' Association v Aldi Foods Pty Ltd [2022] FedCFamC2G 799, 318 IR 206 at [39].
[11] [2023] FWC 943 at [100].
[12] Ibid at [28].
[13] Ibid at [29] citing Hospital Employees’ Industrial Union of Workers, WA v Proprietors of Lee-Downs Nursing Home [1977] WAIG 455 at 456.
[14] [2023] FWC 943 at [33] citing Warramunda Village Inc v Pryde [2002] FCAFC 58 at [43].
[15] [2023] FWC 943 at [33] citing Polan v Goulburn Valley Health [2016] FCA 440 at [74].
[16] [2023] FWC 943 at [34] citing TWU v Jetstar Services Pty Limited [2017] FWC 2535 at [46].
[17] [2023] FWC 943 at [70]-[71].
[18] Ibid at [81]-[83].
[19] Ibid at [39].
[20] Ibid at [50].
[21] Ibid at [104].
[22] Ibid at [53]
[23] Ibid at [54].
[24] Ibid at [56]-[57].
[25] [2022] FWC 3039.
[26] [2023] FWC 943 at [118].
[27] Ibid at [119].
[28] Ibid at [122].
[29] Ibid at [124].
[30] Ibid.
[31] Ibid at [128].
[32] Ibid at [129].
[33] Ibid at [130]-[131].
[34] Ibid at [132].
[35] Ibid at [133].
[36] Ibid at [125] citing Shop, Distributive & Allied Employees' Association v Aldi Foods Pty Ltd [2022] FedCFamC2G 799, 318 IR 206 at [38].
[37] [1977] UKPCHCA 1, 180 CLR 266.
[38] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, 264 CLR 541 at [48]-[49] and [150]-[154].
[39] [2023] FWC 943 at [118], [124].
[40] Ibid at [119].
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