Erina Obodin v Ozcare Pty Ltd T/A Ozcare
[2020] FWC 2964
•10 JUNE 2020
| [2020] FWC 2964 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Erina Obodin
v
Ozcare Pty Ltd T/A Ozcare
(C2020/3577)
COMMISSIONER SIMPSON | BRISBANE, 10 JUNE 2020 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – Ozcare Enterprise Agreement 2018 AE503378 – whether the Commission has jurisdiction to deal with dispute.
[1] On 15 May 2020, Miss Erina Obodin 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 in accordance with the dispute settlement procedure at Clause 1.7 of Ozcare Enterprise Agreement 2018 (the Agreement). Ozcare is the Respondent to this application.
[2] I listed the matter for a private conference on 20 May 2020. On 19 May 2020, Ozcare wrote to my Chambers through their representatives advising that it objected to the conference on the basis that the Commission does not have jurisdiction to deal with the dispute. I wrote to the parties advising I noted the objection and would hear further on the objection at the conference. The private conference was convened by the Commission on 20 May 2020 and did not resolve the dispute.
[3] On 21 May 2020, Miss Obodin wrote to my Chambers and said that she intended to press the application. Miss Obodin provided submissions in support of her argument that the Commission had jurisdiction to hear the matter.
[4] I invited Ozcare to provide submissions in response. Ozcare provided submissions on 2 June 2020.
The Dispute
[5] It appears to be common ground between parties that the dispute involves Ozcare’s requirement that staff receive a mandatory influenza vaccine before they are permitted to work.
[6] Miss Obodin filed her application under s.739 and identified the Agreement as the relevant instrument. This was accepted by Ozcare as the appropriate instrument covering Ms Obodin.
[7] The Agreement is a single enterprise agreement. It was approved in accordance with section 185 of the Act and came into force from 17 May 2019.
[8] Clause 3.8 of the Agreement sets out the dispute resolution procedure for disputes under the Agreement. It says:
“3.8 Dispute Resolution Procedure
3.8.1. This clause sets out procedures to settle a dispute which relates to:
a) A matter arising under this Agreement; or
b) The National Employment Standards (including subsection 65 (5) and 76 (4));
All parties agree to the principles of “Natural Justice” in dealing with a dispute.
3.8.2. a) In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant supervisors and/or management.
b) The parties will attempt to resolve the dispute as expediently as possible.
c) If the parties are unable to resolve the dispute the matter shall be referred to the next level of management.
3.8.3. If the dispute is not resolved, the assistance of the Fair Work Commission may be sought. The Fair Work Commission may deal with the dispute in 2 stages:
a) The Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
b) If the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then:
(i) Arbitrate the dispute; and
(ii) Make a determination that is binding on the parties.
Note If the Fair Work Commission arbitrates the dispute, it may also use the powers that are available to it under the Act.
3.8.4 A decision that the Fair Work Commission makes when arbitrating a dispute is a decision for the purpose of Div. 3 of Part 5.1 of the Act. Therefore, an appeal may be made against the decision.
3.8.5 While the parties are trying to resolve the dispute:
a) The status quo existing before the act or omission in dispute must remain until the dispute is resolved, and;
b) An employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and
c) An employee must comply with a reasonable direction given by Ozcare to perform other available work at the same workplace, or at another workplace.
3.8.6 The parties to the dispute agree to be bound by a decision made by Fair Work Commission in accordance with this term.
3.8.7 At any point within this process, any party to the dispute may appoint a union or other person, to accompany or represent them in relation to the dispute.”
[9] In her initial application, Miss Obodin contended that the dispute was made under clause 3.8 but did not identify which specific clauses of the Agreement the dispute was made under. In her submissions, Miss Obodin identified clause 6.1.6 and 3.2.4 which read as follows:
“3.2 Availability to work
3.2.1 Upon commencement, the employee and Ozcare will mutually agree in writing to the days of the week and shift periods (days, afternoon or evening) the employee is available to be rostered to work ordinary hours.
3.2.2 Ozcare can roster the employee for work within the agreed availability to work.
3.2.3 Requests to vary the availability to work must be put in writing.
3.2.4 Both Ozcare and the employee must mutually agree to any variation to the availability to work, however Ozcare shall not unreasonably refuse such requests.
3.2.5 Any agreed variation to the availability to work will commence after 4 weeks notice, unless mutually agreed otherwise.
3.2.6 Within 6 months from the commencement of this agreement, employees hired prior to the 1st July 2018, shall meet with Ozcare to mutually agree in writing to the employee’s availability to work, if this has not already been done so.
…
6.1 Annual Leave
6.1.1 Every full time and part time employee shall at the end of each calendar year of employment be entitled to annual leave on full pay as follows:
a) Not less than 6 weeks if employed on shift work where 3 shifts per day are worked over a period of 7 days per week, and where an employee works over more than 2 roster periods which involves a combination of day, evening and night shifts;
b) Not less than 5 weeks in any other case.
c) An employee whose employment is terminated prior to the expiration of a full year of employment shall be entitled to a pro rata equivalent of annual leave as provided for above.
6.1.2 This entitlement to accrue is based on the ordinary hours worked. Part time employees will accrue annual leave on a pro rata basis.
6.1.3 For periods of less than 12 months, entitlements shall be calculated on a pro rata basis.
6.1.4 Such annual holiday shall be exclusive of any public holiday, which may occur during the period of that annual holiday.
6.1.5 Taking into account 6.1.1, part time employees can apply to take annual leave for the hours they would ordinarily expect to be rostered for the period, or the average of the actual hours worked over the preceding 3 month period, whichever is the greater.
6.1.6 Ozcare can require an employee to take annual leave by giving not less than 28 day’s notice of the time when such leave is to be taken.
6.1.7 Ozcare will be fair in deciding whether to agree to an employee request to take annual leave, and will consider:
a) The operational needs of Ozcare;
b) The order which submitted requests are received;
c) Timing of the request;
d) Fairness from year to year over peak periods (e.g. Christmas, Easter, school holidays etc.); and
e) The individual needs of employees.
6.1.8 Calculation of annual leave pay:
a) The employee’s ordinary wage rate, as prescribed in Schedule 1 of this Agreement, for the period of the annual leave (excluding shift premiums and weekend penalty rates); plus
b) A further amount calculated as follows for annual leave loading:
i) 11.67% loading on 6 weeks leave (this is equivalent to 14% loading on 5 weeks leave if the employee is entitled to 6 weeks leave); or
ii) 14% loading on 5 weeks leave.
c) Employees who undertake shiftwork (as per clause 4.9), in addition to their ordinary pay, will be paid the higher of either but not both:
i) The annual leave loading as outlined in clause 6.1.8 (b); or
ii) The shift loading (including relevant weekend, afternoon and night shift penalty rates) the employee would have received had they not been on leave during the relevant period)
6.1.9 Accrual of Annual Leave
If an employee has accrued an excessive amount of annual leave (i.e. in excess of 10 weeks), Ozcare may direct the employee to take a reasonable amount of annual leave, by giving not less than 28 days notice of the time when such leave is to be taken.
6.1.10 Annual Leave at half pay
Taking into account the operational requirements, and by mutual agreement between Ozcare and the employee, the employee may request to take up to 2 weeks per annum of their annual leave at half pay.
6.1.11 Cashing out of Annual Leave
a) Ozcare believes that employees should use their annual leave to take adequate rest breaks from their employment, and wherever possible will encourage employees to do so.
b) Cashing out of annual leave may occur by agreement in writing at the time between Ozcare and the employee, on a case by case basis, taking into account the employee’s leave balance and workplace health and safety requirements.
c) To cash out annual leave an employee must retain a balance of 4 weeks annual leave after cashing out. For part time employees, cashing out will be calculated on a pro rata basis.”
Applicant’s submissions
[10] In her Form F10 – Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure, Miss Obodin said she had worked for Ozcare for 2 years and 3 months.
[11] Miss Obodin said that the dispute was about Ozcare’s demands that influenza vaccines are mandatory. Ms Obodin said she was anaphylactic and was not able to ‘take’ (receive) an influenza vaccine. Miss Obodin said that previously she had signed a waiver to this effect.
[12] Miss Obodin said that since COVID-19, Ozcare had asked her to sign the influenza vaccine waiver form and she did. Miss Obodin said that she was then asked for a medical certificate which she obtained from her family doctor. She said she was then required to write to the CEO explaining her case.
[13] Miss Obodin said she received the following letter from Ozcare on 8 April 2020:
“Dear Erina,
Thank you for being a valued employee of Ozcare. I am writing to advise you of two important measures we are implementing for employees given the current coronavirus (COVID-19) situation. These measures will help ensure we continue to protect our clients and help stop the spread of COVID-19, while ensuring business continuity for Ozcare.
Mandatory Influenza Vaccination
Due to COVID-19 and the duty of care we have to our clients, we have updated our Employee Immunisation Policy (IPC 015) to make influenza vaccinations mandatory for all employees working in our community care services that have direct client contact.
Ozcare will provide your influenza vaccination to you at no cost. Vaccination clinics are now being scheduled at your local branch or facility and you are required to have your influenza vaccination as soon as possible and prior to 1 May 2020.
If you are unable to comply with this direction due to a medical condition, you must provide supporting evidence by 1 May 2020 to [email redacted].
Annual Leave
Due to COVID-19 we have experienced fluctuations in the demand for our services. As a result, it may be necessary for us to instruct employees to take periods of annual leave as the volume of work changes.
Under clause 6.1.6 of the Ozcare Enterprise Agreement, Ozcare is able to instruct employees to take periods of annual leave with 28 days’ notice. Please take this letter to serve as notice for the next three to six months.
Thank You
I would like to reassure you that Ozcare is well-placed to see this situation through and I thank you for your continued support.
On behalf of the Ozcare board and leadership team, I would also like to thank you for your hard work and commitment to caring for your community. The work you do is invaluable, now more so than ever, and we are very proud of your efforts and your dedication to helping us serve and protect our clients.
Please stay safe and well.
Yours sincerely,
Anthony Godfrey
Chief Executive Officer”
[14] Miss Obodin submitted she was advised in writing on 8 April 2020 that Ozcare was requesting that she take annual leave, and on 1 May 2020, her rostered hours were reduced to zero. Miss Obodin submitted this was a breach of clause 6.1.6 of the Agreement as she was only given 23 days’ notice that she would be required to take annual leave rather than 28 days as required by that clause.
[15] In relation to clause 3.8.3, Miss Obodin said that the agreement contains a dispute resolution procedure and Ozcare has not made any relevant discussions with her. Miss Obodin said she had asked her immediate supervisor to call her by leaving a message, but this has never occurred.
[16] Miss Obodin submitted she has followed all internal dispute resolution procedures as defined under clause 3.8 by following Ozcare’s requests for medical information and all other relevant requirements before lodging a dispute with the Commission. Miss Obodin said Ozcare has not followed the procedure in the Agreement as the status quo has changed.
[17] Miss Obodin said in relation to clause 3.2.4 that she has not mutually agreed with anyone at Ozcare for any variation to her availability to work, and that she has not been offered any agreed availability to work. Miss Obodin said she was not offered a roster but has had her hours cut to zero per fortnight.
[18] In her Form F10 application, Miss Obodin said she is seeking that Ozcare reinstate her working hours and roster. She said that Ozcare should understand that a workplace should not be based on intimidation and discrimination because of her medical condition and that government agencies need to abide by EEO (Equal Employment Opportunity) legislation.
Respondent’s submissions
[19] Ozcare submitted that s.739 of the Act has the effect that the Commission may only deal with a dispute pursuant to an enterprise agreement dispute resolution procedure if the procedure “requires or allows” the Commission to deal with the dispute.
[20] Ozcare submitted Miss Obodin’s submissions seem to refer to a dispute about sub-clauses 6.1.6 and 3.2.4 of the Ozcare Agreement, that appear in clause 6.1 (Annual Leave); and clause 3.2 (Availability to Work) respectively. Ozcare submitted is about neither of these clauses.
Annual Leave
[21] Ozcare submitted Section 94(3), of the FW Act, which is contained in the National Employment Standards states as follows:
“A modern award or enterprise agreement may include terms requiring an employee, or allowing for an employee to be required, to take paid annual leave in particular circumstances, but only if the requirement is reasonable.”
[22] It submitted clause 6.1.6 of the Ozcare Agreement states:
“Ozcare can require an employee to take annual leave by giving not less than 28 day's (sic) notice of the time when such leave is to be taken.”
[23] Ozcare submitted Miss Obodin refers to the letter Ozcare’s Chief Executive Officer dated 8 April 2020, attached to her submissions and now states this is what her dispute is about. It submitted the letter was a generic letter sent to all employees of Ozcare. By that letter, Ozcare submitted it gave not less than 28 days’ notice that employees may be required to take annual leave. Ozcare noted 28 days passed on 6 May 2020.
[24] Ozcare submitted however that Miss Obodin is not presently on annual leave and did not take annual leave before or after 6 May 2020. It submitted in effect, the notice given in the 8 April 2020 letter has never been acted upon in relation to Miss Obodin. Ozcare submitted there can be no dispute about the Applicant “being required” to take annual leave, because she has not actually been so required.
[25] Ozcare submitted further that on 13 May 2020, following correspondence between Miss Obodin and Ozcare as to Miss Obodin’s response to the introduction of mandatory flu vaccinations, Ozcare clarified for Miss Obodin that she may wish to take annual leave, or other approved leave that is available to her, at her election.
Availability to Work
[26] Ozcare submitted clause 3.2 of the Ozcare Agreement is directed at rostering hours in accordance with an employee’s preference for working hours, or their “availability”. It submitted Miss Obodin’s “availability” is not in issue, as Miss Obodin says she is available to
be rostered.
[27] Ozcare submitted Miss Obodin relies on clause 3.2.4 of the Ozcare Agreement, which states:
“3.2.4 Both Ozcare and the employee must mutually agree to any variation to the availability to work, however Ozcare shall not unreasonably refuse such requests. (emphasis added)”
[28] Ozcare submitted that the word “such” appears as a pronoun for the request. That is, where there has been request by an employee to a variation to their availability. It submitted there has been no request here and that this sub-clause is simply not relevant to this dispute.
[29] In summary Ozcare submitted Miss Obodin has not been required by Ozcare to take annual leave, is not presently on annual leave and has not made any request under sub-clause 3.2.4 of the Ozcare Agreement. It submitted that it follows there is no dispute about annual leave, or clause 3.2.4 of the Ozcare Agreement.
[30] Ozcare submitted that the dispute is, and remains, in substance, about Ozcare’s introduction of mandatory flu vaccinations. It submitted to the extent that Miss Obodin is in dispute with Ozcare about that, it is not a matter which is permitted to be resolved under clause 3.8.1 of the Agreement, and therefore the Fair Work Commission should cease to deal with the Application.
[31] Upon consideration of submissions from both parties, I am inclined to prefer the submissions from the Respondent on this occasion. I am of the view that the dispute between the parties does not squarely fall within the clauses of the Agreement put forward by the Applicant.
[32] I accept the Respondent’s position that there can be no dispute about the Applicant “being required” to take annual leave, because she was not required to do so, and therefore the dispute cannot fall within clause 6.1.6 of the Agreement. I also accept that there has been no request from Ms Obodin for any variation to her availability to work and therefore clause 3.2.4 of the Agreement is not relevant to the dispute.
[33] It appears as though the nature of the dispute is one that relates to Ozcare policy, rather than a dispute under the Enterprise Agreement. I therefore find there is no jurisdiction for the Commission to hear this application and it must be dismissed.
[34] It is noted the Commission may have jurisdiction to deal with this dispute under s.372 of the Act, however that is a matter for Ms Obodin.
[35] It is also noted that Ms Obodin requested a Hearing to determine the matter of jurisdiction. Ms Obodin provided reasons which appeared to raise new issues that related to allegations of workplace bullying. The reasons provided do not persuade me that there is jurisdiction under s.739, nor that a Hearing should be required. The Commission may have jurisdiction to deal with the new issues raised by Ms Obodin, though again that would be under a separate section of the Act requiring a different application.
[36] The application is dismissed.
COMMISSIONER
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