Carly Marie Stevenson v Australian Bureau of Statistics

[2023] FWC 1390

[2023] FWC 1390

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Carly Marie Stevenson
v

Australian Bureau of Statistics

(C2023/2622)

COMMISSIONER SIMPSON BRISBANE, 31 JULY 2023

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

1. On 11 May 2023, Mrs Carly Marie Stevenson (Mrs Stevenson / the Applicant) made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute. Australian Bureau of Statistics is the Respondent in the matter (ABS / the Respondent).

1. I listed the matter for a private conference on 29 May 2023 and a subsequent conference on 14 June 2023. The matter did not resolve at conference and the parties agreed for the Commission to move to the arbitration stage of the Dispute Resolution Procedure.

1. At the conference on 14 June 2023, the parties sought a decision be made based on the material already before the Commission. I sent an email to the parties this same day confirming this, and the parties both confirmed their consent.

The Dispute

Applicant’s Submissions

1. The Applicant submitted that she has been employed by the Australian Bureau of Statistics since February 2019 as an ongoing employee in the capacity of Interviewer.

1. The Applicant submitted that the ABS Interviewers Enterprise Agreement 2020 (the Agreement) states in clause 20.1:

“An ongoing Interviewer will be guaranteed an assignment or assignments equivalent to 40 ordinary hours of work for the two week period they are required to be available each month, with a minimum of 15 hours in each week.”

1. Further, 20.8 states

“Where the aggregated assignments allocated to an Interviewer in the required availability weeks results in an Interviewer being paid less than the guaranteed assignment ordinary hours of work outlined in clause 20.1 or 20.2, the shortfall in hours to the  maximum of the guaranteed assignment will be paid to an Interviewer.”

1. The Applicant submitted that from this, for an ongoing interviewer, the minimum pay per month is 40 hours.

1. The Applicant submitted that she has not disclosed her Covid vaccination status which leaves her in breach of the ABS Covid-19 Vaccination Policy. This is what has brought about the dispute.

1. The Applicant submitted that she has not been terminated under section 27 of the Agreement, but has been told she’s not fit for duty but has had no formal process carried out in accordance with section 28 of the Agreement.

1. It was submitted by the Applicant that she is also not ‘Injured or ill’ as described in the ABS Employment Conditions Manual, therefore this process cannot be applied.

1. The Applicant submitted that she has been told she has voluntarily made herself unavailable, which she never formally said, she has only withheld her vaccination status. Contrary to the ABS’s ‘unavailable’ position, the Applicant submitted that she is still required to be available in her required availability weeks, and has been sent confirmed allocation of workloads in the same manner as she received the past 4 years, required to do training, and still had work sent to her on an ad-hoc basis which she has always completed. The Applicant submitted that confirmation that she is ‘available’ is in her performance reviews.

1. The Applicant submitted that in the Agreement the only recourse for the ABS reducing her pay below that minimum 40 hours is in sections 82 and 86. The Applicant submitted that both of these have a clear formal process. The Applicant submitted that under section 82, she is not underperforming so this process is not applicable. As for section 86, no process has been afforded to her.

1. The Applicant submitted that she has had her pay reduced with no formal process in August 2022, and the ABS is disregarding clause 20.8. The Applicant submitted she is still receiving an allocation of work hours close to the 40 hours each month but it is being withheld from her. The Applicant submitted that procedural fairness has been non-existent in this entire time.

Respondent’s Submissions

1. The ABS submitted that the Applicant is an ABS Field Interviewer whose inherent duties  include the requirement to be able to conduct face to face interviewing of respondents to ABS surveys. The ABS submitted that in late 2021 the ABS was returning to face to face in field interviewing following a long  period where field operations had been paused due to COVID-19. 

1. It was submitted that the ABS undertook a risk assessment of the work health and safety risks of COVID-19 to staff undertaking field work and their  respondents.  This risk assessment identified a number of controls that may improve safety and from this, after all staff consultation, the ABS developed and introduced a Vaccination Policy.  This policy required all staff undertaking field work and interacting with respondents to be vaccinated. The ABS submitted that this was seen as the most suitable and reasonable control to reduce the likely impact of serious illness or injury of COVID-19 to ABS  field staff and their respondents (many of whom are in vulnerable categories).

1. The ABS submitted that in December 2021 Interviewers were advised of the Vaccination Policy, its requirements for vaccination to undertake field work and were requested to provide their vaccination status. Those who responded to “no they were not vaccinated” or chose not to disclose their vaccination status were unable to undertake field work as a result.  Staff who were not vaccinated had the option to request an exemption from the vaccination requirement if they were immunocompromised or had other valid reasons they couldn’t be vaccinated (eg. religious beliefs etc).

1. The ABS allowed an extended period of time (December 2021 to October 2022) for ABS Interviewers to adhere to the policy requirement of being vaccinated to undertake field work.  During this time the ABS  topped up Interviewer’s  salaries to 40 hours per fortnight where the allocated non field work was less than this number of hours.

1. Interviewers who were not vaccinated (excluding those with exemptions) or who continued to decline to advise the ABS of their vaccination status were advised in August 2022 that the ABS would be ceasing top up payments in 2 months unless they were eligible to undertake fieldwork.  This took effect for the Applicant in October 2022 as her vaccination status had not changed.

1. The ABS submitted that as the Applicant stated in her F10 application she chose not to disclose her vaccination status, and the ABS viewed this as her voluntarily removing herself from being available to undertake the field work component of her inherent duties.  The Applicant has not applied for an exemption from the requirement to be vaccinated to undertake field work.

1. Contrary to the Applicant’s allegation, the ABS submitted they have not reduced her salary.  While the Applicant states she is available for 40 hours of work, the ABS submitted that her actual availability has been reduced by her voluntary choice not to advise the ABS of her vaccination status which has resulted in her inability to perform the inherent field work component of her role.  The ABS submitted that they have paid the Applicant based on her actual non field work she has undertaken eg. Telephone interviews, administration tasks and training.

1. The ABS submitted that the Applicant’s references to not being provided procedural fairness in relation to fitness for duty and performance management aren’t relevant.  The Respondent contended that she has not been assessed as unfit medically for duty as per the Interviewer Fitness for Duty Guidelines nor is she being managed for poor performance under the Development and Performance Management Framework.  Neither process has been initiated, she has simply made herself unavailable for the field work component of her inherent duties due not meeting the requirements of the ABS Vaccination Policy to engage in field activities.

1. It was submitted by the ABS that procedural fairness has been applied to the Applicant throughout this process.  As previously mentioned, the ABS allowed an extended period for all Interviewers to meet the requirements of the ABS Vaccination Policy.  The Applicant was provided 2 months warning that top up payments would cease unless she met the requirements of the Vaccination Policy and therefore became available to perform the full inherent duties of an interviewer.  The ABS submitted that during this  period the Applicant took no action to address meeting the requirements of the policy including requesting an exemption if she qualified.

Consideration

1. The Applicant has not sought to challenge in its material the veracity of the Respondent’s risk assessment of the work health and safety risks of COVID-19 to staff undertaking field work and their respondents.  I accept on the basis of conclusions drawn in previous decisions of this Tribunal[1] that the ABS policy requirement that Interviewers be vaccinated to undertake field work was a logical and rational policy, staff had been consulted about the policy, and the direction that Interviewers must be vaccinated in order to undertake fieldwork was a lawful and reasonable direction on the material put before me. 

1. In terms of the respective legal rights of the parties, in order to earn wages, the Applicant was required to perform the service the Applicant had been contracted to perform, which included field work.  As the Applicant did not comply with a lawful and reasonable direction to be vaccinated to perform field work, the Applicant was unable to perform field work.  Although the Applicant may have been willing to perform the work, the Applicant was not ready and able to perform the work required by her contract of employment.  As that was the case, the Applicant was not entitled to payment of wages in the manner contemplated by 20.8 because the Applicant was not ‘available’ for the entirety of the two-week period as contemplated by clause 20.1 of the Agreement.  The Applicant is only ‘available’, for work that does not involve field work, because of the Applicant’s decision not to disclose her vaccination status to the Respondent. 

Conclusion

1. The Respondent is entitled to pay the Applicant as it has done, and the Applicant is not entitled to ‘top up’ payments, (as the Respondent described the payments in clause 20.8), because the Applicant has not been ‘available’ for the two week period within the meaning of clause 20.1, for all of the ‘required availability weeks’ as described in clause 20.8. 

COMMISSIONER

[1] Construction, Forestry, Maritime, Mining and Energy Union (105N) & Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal - [2021] FWCFB 6059

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