Australian Nursing and Midwifery Federation v Wongaburra Society T/A Wongaburra Nursing Home

[2022] FWC 2036

[2022] FWC 2036

FAIR WORK COMMISSION

OPINION

Fair Work Act 2009

s.739—Dispute resolution

Australian Nursing and Midwifery Federation
v

Wongaburra Society T/A Wongaburra Nursing Home

(C2022/3865)

COMMISSIONER SIMPSON BRISBANE, 2 AUGUST 2022

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

1. On 4 July 2022, the Australian Nursing and Midwifery Federation (ANMF) filed an application in the Fair Work Commission (the Commission) pursuant to s.739 of the Fair Work Act 2009 (the Act) seeking that the Commission deal with a dispute pursuant to the dispute settlement procedure at clause 9 of the Wongaburra - Nurses Enterprise Agreement 2016 (the Agreement). The Respondent to the dispute application is Wongaburra Society T/A Wongaburra Nursing Home (the Respondent).

1. The scope of the dispute settlement procedure is wide in that it relates to matters under the Agreement, the National Employment Standards and any other industrial matter. 

1. The dispute application was said to relate to three separate clauses in the Agreement.  Firstly clause 10.5 Incidental and Peripheral Tasks, clause 14.2 Rates of Pay as set out in Schedule B, and clause 18.1 regarding payment of wages. 

1. The application set out that the dispute concerns the Respondent employer’s failure and refusal to pay wages to its employees who work in the nursing home for service provided to it by those employees in undertaking Rapid Antigen Tests (RAT) for COVID-19 infection.  The application contends that the service was constituted by work performed, or other service provided, by employees in compliance with two directions of their employer that all staff need to have a RAT before entering the facility.

1. The application states that the first direction was given in mid-March 2022 in a written memo by Roslyn Browning, Facility Manager, which included that all staff were required to report to the Koondi Café at least 15 minutes before their shift commenced.

1. The application states that the second direction was given in writing by SMS to “All Staff” on 13 April 2022 as follows:

“To rectify a previous message that has gone out and been misinterpreted.  Please ensure your RAT test is completed before you enter the facility.”

1. The ANMF submits that the two directions are instructions to complete an incidental or peripheral task, and the minimum amount of time spent by an employee in undertaking a RAT is 15 minutes.  The AMNF submits this has resulted in wages not being paid. 

1. The application stated that on 21 April 2022 the Respondent informed the ANMF that it had paid its employees “for the 15 minutes they were asked to attend prior to their shift as per the first wording sent in our first memo to staff”.  The ANMF submit that the employer refused to pay staff any wages for an employee undertaking a RAT after the employer gave its second RAT instructions on 13 April 2022. 

1. The ANMF submit that wages are earnt by service at common law and an employee serves the employer whenever the service is given, whether at the employer’ premises, the employee’s home or elsewhere.

1. The application said that Mr Crank discussed the dispute with Ms Nadia Marroni, the Respondent’s Human Resources Manager on 13 April 2022, and asked Ms Marroni to commit the Respondent to paying all the unpaid wages.  Further, Mr Crank discussed the dispute with Ms Browning, Facility Manager on 14 April 2022 and asked Ms Browning to commit the Respondent to paying all the unpaid wages. 

1. The application states that the relief sought is a declaration in the following terms:

“The undertaking of a Rapid Antigen Test for COVID-19 infection by an employee of Wongaburra Society (the employer) pursuant to an instruction by the employer, is work and service to the employer for which the employer must pay wages to the employee.” 

1. The dispute was listed for a conference on 20 July 2022.  The ANMF was represented by Mr Kevin Crank an Industrial Officer of the ANMF, and the Respondent was represented by Ms Brooke Holdsworth, a Senior Associate at McCullough Robertson Lawyers.  The ANMF did not oppose the Respondent being represented by a Lawyer for the purposes of the conference only and permission was granted pursuant to section 596 on that basis. 

1. Both parties were given an opportunity to elaborate on the issues at the conference.  The ANMF position largely restated the position as put in the application.  It was submitted for the Respondent that it maintained that the parties were at cross purposes, and that the Respondent had accepted the ANMF position to the extent that the first direction required employees to undertake a RAT 15 minutes before the commencement of their rostered starting time. It was conceded by the Respondent that those employees were entitled to be paid for that time, and further that the Respondent had back paid for that time up until 13 April and subsequently clarified with staff that they were not required to undertake a RAT prior to the commencement of their shift and could do so at the commencement of shift and relied on a memo it said was issued to staff. 

1. This concession did not resolve the issue.  I requested that the Respondent provide to my chambers the memo to which it referred, so I could examine the document.  I adjourned the conference for a short time.  The Respondent subsequently forwarded to both my chambers and the ANMF a copy of a memo dated 14 April 2022, and several emails exchanged between the ANMF and the Respondent.

1. The memo sent to chambers reads as follows:

“April 14^th April (sic) 2022

The recent change of direction asks staff to complete a Rat test before they enter the facility.
All staff are paid as per their rostered shift start time.

As an example:
If a staff members rostered shift is 0600hrs – 1400hrs, and they
do a RAT test at 0600hrs they are paid from 0600hrs.
If a staff members shift is from 0600hrs – 1400hrs and they choose to do a RAT test prior to 0600hrs they are paid from 0600hrs.

If any staff choose to do the RAT test prior to their start time it is at their discretion.

Any concerns please don’t hesitate to come and see management.”

1. A series of emails were also sent to chambers.  The first of those was as follows:

“From: Wongaburra HR (email address redacted)

Sent: Thursday, 21 April 2022 9:17 AM
To: Kevin Crank (email address redacted)
Cc: Roslyn Browning (email address redacted)
Subject: Re: Concern

Good afternoon Kevin,

Thank you for your email response on Tuesday afternoon.

Wongaburra is paying all staff members for the 15 minutes they were asked to attend prior to their shift as per the wording sent in our first memo to staff, which you have brought to our attention.

We have acknowledged that the wording was misleading and have rectified our error in good faith.

Kind Regards,
Nadia Marroni
Human Resources Manager
Wongaburra Society
…………”

1. An email in response from Mr Crank was provided as follows:

“From: Kevin Crank (email address redacted)

Sent: Thursday, 21 April 2022 1:09PM
To: Wongaburra HR (email address redacted)
Cc: Roslyn Browning (email address redacted)
Subject: Wage theft re RATs

Nadia

We note the promise by Wongaburra Society to pay to all of its employees in accordance with the employer’s obligations for each period of 15 minutes that those employees were directed to attend ‘prior to shift’.

Please advise by reply email the date by which Wongaburra Society will pay wages to all of its employees in accordance with the employer’s obligations for each period of 15 minutes that those employees were directed to attend ‘prior to their shift’.

In my previous email, I asked for a copy of the new memo concerning staff undertaking RAT tests, but I have not received such copy.  If I have not received such a copy of 4pm today, the ANMF/QNMU will exercise a right under the Fair Work Act to obtain such a copy.

Regards

Kevin Crank
Industrial Officer
…………”

1. An email in response was provided by Ms Marroni of the Respondent as follows:

“From: Wongaburra HR (email address redacted)

Sent: Thursday, 21 April 2022 4:29 PM
To: Kevin Crank (email address redacted)
Cc: Roslyn Browning (email address redacted)
Subject: RE: Concern

Good afternoon Kevin,

Please find attached a copy of the memo with the revised wording.

Wongaburra has paid the affected employees this last pay run being Wednesday the 20^th April 2022.

Kind Regards,
Nadia Marroni
Human Resource Manager
Wongaburra Society
……………” 

1. A further email was sent in response from Mr Crank six days later as follows:

“From:  Kevin Crank (email address redacted)

Sent: Tuesday, 26 April 2022 5:39 PM
To: Wongaburra HR (email address redacted)
Cc: Roslyn Browning (email address redacted)
Subject: Wage Theft re RAT testing

Hi Nadia

We infer from discussions with you and Roslyn that the message to staff on 13 April about RAT tests (“with revised wording”) was sent in the vain hope of creating an excuse not to pay wages to staff for their time spent undertaking RAT test on and after 13 April.  That message did not change the employer’s requirement upon employees to undertake a RAT test before entering the workplace to continue their work on each occasion.  There was no misinterpretation of the mid-March direction to staff to undertake RAT tests.

We ask you to confirm by 4pm tomorrow that Wongaburra Society will pay wages to all staff for all time taken by them to undertake a RAT test on and after 13 April.

Regards
Kevin Crank
Industrial Officer
…………..”

1. On having read both the Memo dated 14 April and the emails during the adjournment of the conference I gave both parties an opportunity to address the Commission further. 

1. It was apparent that the Respondent conceded that where employees had been directed to undertake testing before the commencement of their shift in the period up to 13 April that they should be paid and it said that it had back paid these amounts.  The ANMF did not contest that these amounts had not been paid but at the same time could not verify that they had been paid.

1. The ANMF suggested in the course of the conference that given the Respondent’s concession, the ANMF asked the Respondent whether it would consent to the Commission issuing an Order consistent with the remedy sought in the application.  The Respondent did not consent to this proposal.

1. The ANMF remained of the view that despite the concession of the employer, and the back paying of employees up to 13 April, and the issuing of the memo of 14 April that the Respondent was required to pay for time employees had taken to undertake RAT tests prior to their commencement of shift on and from 13 April.

1. Whilst the Memo of 14 April on its own terms contemplated circumstances where an employee may choose to do a RAT prior to their start time, the Memo described this as being at an employee’s discretion. 

1. It was apparent having considered the contents of the Memo issued to staff dated 14 April that whatever direction may have been issued by the Respondent prior to that date, it was sufficiently clear that at least from 14 April the Respondent was no longer requiring that employees undertake a RAT prior to the commencement of their rostered shift time. 

1. That being so I was satisfied both from what the Respondent’s representative said during the conference and the memo that as from 14 April there was no direction or requirement from the employer that employees undertake a RAT before their shift commenced.  The memo specifically refers to employees undertaking a RAT at the commencement of shift.

1. As I comprehend the position of the ANMF it maintains that even though the Respondent withdrew the requirement for employees to undertake a RAT at a time prior to the commencement of an employee’s shift by the issuing of the Memo of 14 April, the Respondent is still required to pay for the time taken to undertake a RAT because it is done so as directed by the Respondent, as it is a requirement to enter the workplace.

1. The difficulty for the ANMF position is that in order for the claimed period of time to fall within the meaning of work, and attract payment under the Agreement, there must be both a direction to undertake the work, and that the work be undertaken at a particular time.  As from 14 April the direction from the employer to undertake a RAT pertained to a time coinciding with the commencement of shift.  There was no longer any direction to undertake a RAT prior to the commencement of shift.  On that basis there can be no entitlement to claim that time as work.  Whilst it is true that there remains a direction that all staff must undertake a RAT, in circumstances where an employee elects for whatever reason to undertake a RAT at a time prior to when they have been directed to by their employer, that is not a time as directed by their employer. 

1. On the basis that in my view the answer to the question in dispute is clear, I indicated in the course of the conference that it was appropriate in the circumstances for the Commission to provide the parties with the Commission’s opinion and I proceeded to do so consistent with what is set out above.  Further, I advised the ANMF that should there be any confusion about the issue it could advise its members not to undertake a RAT until commencement of shift.

1. I offered to provide the parties the opinion as stated in the conference in writing.  Both parties indicated that they did not require the Commission to provide the opinion in writing and the conference was adjourned.   

1. On 22 July 2022, my chambers was copied into an email sent from Mr Crank to the chambers of Vice President Catanzariti as follows: 

“Good morning

On 20 July 2022, Commissioner Simpson conducted a conference in the above matter in accordance with s 739 of the Fair Work Act and the Dispute Resolution procedure in Clause 9 of the Wongaburra - Nurses Enterprise Agreement 2016 (the EA). During that conference, Commissioner Simpson attempted to resolve the dispute by expressing an opinion. The conclusion of the opinion expressed by Commissioner Simpson was to the effect that ‘It wouldn’t be open to argue that a RAT test before (an employee’s rostered commencement time such as) 6am is work.’

The ANMF disagrees with the opinion expressed by Commissioner Simpson and thus the Fair Work Commission is unable to resolve the dispute at the first stage.

In accordance with the Dispute Resolution Procedure in the EA (Clause 9) the Fair Work Commission may then:
(i) arbitrate the dispute; and
(ii) make a determination that is binding on the parties.

We request that the Fair Work Commission:
(i) arbitrate the dispute; and
(ii) make a determination that is binding on the parties.

As Commissioner Simpson has expressed a very definite view against our Application in this dispute, we also respectfully request that the arbitration of this dispute be allocated to a Commissioner other than Commissioner Simpson.

We also request that the matter be listed for a directions hearing.”

1. The chambers of Vice President Catanzariti sought confirmation from my chambers that the ANMF maintained its view that the matter proceed to arbitration, and on 29 July email correspondence was sent from my chambers to the ANMF copying in the Respondent, advising that the Vice President sought confirmation that the ANMF wished to proceed to arbitration. 

1. Further the parties were advised that in the event that the Applicant confirmed they wish for the matter to proceed to arbitration, I would issue my opinion in writing.  The ANMF confirmed its request for the matter to proceed to arbitration, and also confirmed that it had declined the offer of the Commission to issue an opinion in writing. 

1. There appeared to be no dispute during the conference once the further material was provided by the Respondent, that the Respondent was not directing employees to undertake a RAT prior to the commencement of their rostered shift. The ANMF position appears to be that regardless of when a RAT is undertaken, the very fact of it being a requirement of the Respondent that a RAT must be undertaken, means that the time required to undertake the RAT must be paid for by the employer.

1. It remains unclear to me what possible basis could exist for the ANMF to claim an entitlement that its members be paid for a period of time that they are not being directed or required to work.  If an employee decides to undertake a RAT during their own time when their employer has made clear to them that they are not required to undertake a RAT in their own time, then that is a situation of the employees choosing, but the employee cannot then claim an entitlement to be paid for that time.  There was no submission made by the ANMF that employees were being subjected to some form of pressure to continue to undertake a RAT prior to their commencement time. 

1. I accept however, that given I have stated my view in the course of the conference in the clearest terms in an attempt to resolve the dispute and the ANMF does not accept that view and maintains its position that it wishes for the matter to proceed to arbitration, then it is appropriate that I refer the file to Vice President Catanzariti as Regional Coordinator to determine the issue of future allocation. 

COMMISSIONER

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