Healthscope Operations Pty Ltd T/A Healthscope v Catherine Pllu, Carolyn Nugent, Melina Gerding Faivre, Jodie Lees, Erin Noyes, Aleena Alphy, Belinda Tolman, Michael Jones, Phil Mckay
[2023] FWC 2874
•1 NOVEMBER 2023
| [2023] FWC 2874 |
| FAIR WORK COMMISSION |
| RECOMMENDATION |
Fair Work Act 2009
s.739—Dispute resolution
Healthscope Operations Pty Ltd T/A Healthscope
v
Catherine Pllu, Carolyn Nugent, Melina Gerding Faivre, Jodie Lees, Erin Noyes, Aleena Alphy, Belinda Tolman, Michael Jones, Phil Mckay
(C2023/6050)
| COMMISSIONER SIMPSON | BRISBANE, 1 NOVEMBER 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
On 9 October 2023, Healthscope Operations Pty Ltd T/A Healthscope (Healthscope / the Applicant) made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the FW Act) to deal with a dispute. Healthscope named nine employees as Respondents to the application. These are:
· Catherine Pllu;
· Carolyn Nugent;
· Melina Gerding Faivre;
· Jodie Lees;
· Erin Noyes;
· Aleena Alphy;
· Belinda Tolman;
· Michael Jones; and
· Phil McKay.
(Collectively, the Respondents).
The matter was listed for a conference on 30 October 2023. The following parties appeared:
Mr Andrew Farr from PwC for the Applicant alongside Mr Scott Davidson (Senior Workplace Relations Manager) and Ms Denise Hartley (Director of Nursing, Gold Coast Private Hospital from Healthscope);
Mr Simon Grant of Counsel instructed by Mr Mark Game from Aylward Game Solicitors for seven of the nine Respondents being Catherine Pllu, Carolyn Nugent, Melina Gerding Faivre, Jodie Lees, Erin Noyes, Aleena Alphy and Belinda Tolman; and
Mr Christopher Murray (QNMU Industrial Officer) alongside Ms Kellie Dwyer (QNMU Professional Officer), Ms Kelly-Maree O’Hagan (QNMU Organiser) for their members Mr Paul McKay and Mr Michael Jones.
At the end of the conference, the parties sought that the Commission issue a recommendation. Accordingly, directions for further material were issued.
The following material was filed:
Form F10 Application dated 9 October 2023;
Form F1 Reply from the ANMF dated 25 October 2023 and filed on 26 October 2023 (Attachment ANMF-13 withdrawn on 27 October 2023);
Form F1 Reply from Aylward Game Solicitors dated 26 October 2023 and filed 27 October 2023;
Further Submissions on behalf of the Applicant dated 30 October 2023;
Further Submissions from Aylward Game Solicitors dated 30 October 2023;
Further submissions from the ANMF dated 30 October 2023.
THE DISPUTE
It is submitted the Respondents are employed by the Applicant in the role of Clinical Nurse, Enrolled Nurse or Registered Nurse. The Applicant and the Respondents are covered by the Healthscope – Queensland – Nurses and Midwives – Enterprise Agreement 2021 (the Agreement) in relation to this employment.
On 15 August 2023, the Applicant held a meeting with paediatric staff, including the Respondents, regarding the possible closure of the Paediatric Ward at Gold Coast Private Hospital and transition to an integrated ward for paediatric services.
The Applicant submitted that following this meeting and during a two-week consultancy period, all paediatric staff, including the Respondents, were invited to attend a meeting to discuss their individual options and to raise any queries or feedback.
It was submitted by the Applicant that following this period of consultation, on or about 31 August 2023 the Applicant wrote to each of the Respondents confirming that it had considered the feedback provided and decided to proceed with the proposed change and transition to an integrated ward for paediatric services, with effect from 9 October 2023.
On or about 20 September 2023, the Applicant submitted they wrote to each of the Respondents to confirm that they would be transferred to a different ward following closure of the Paediatric Ward. The Respondents were to be engaged in the same role, with the same rate of pay, at the same hospital.
The Paediatric Ward closed on 9 October 2023.
The Respondents consider that their employment has been made redundant within the meaning of clause 16 of the Agreement and section 119 of the FW Act. The Applicant denies this claim on the basis that it has provided the Respondents with alternative and suitable employment within different wards of the same hospital.
The Applicant submitted that Schedule D of the Agreement sets out the classification levels that apply to employees covered by the Agreement. Schedule D does not distinguish between wards or sub-specialities. There is therefore no change to the terms and conditions of the Respondents’ employment as a result of the transfer to alternative wards.
APPLICANT SUBMISSIONS
Steps taken to resolve dispute – Form F10
The Applicant first raised the possible closure of the Paediatric Ward and the possibilities of redundancies with the Respondents and other paediatric staff on or about 15 August 2023. Following that meeting, the Applicant’s representatives met with the Respondents in 1-on-1 meetings to discuss how they would individually be impacted by these changes and receive any feedback or concerns from the Respondents. The prospect of potential voluntary redundancies was canvassed during these meetings. A letter was sent to each Respondent following this meeting, summarising the proposed changes to paediatric services.
The Applicant submitted that a second letter was sent to each Respondent on or about 31 August 2023 confirming that it had considered the feedback provided and decided to proceed with the proposed change and transition to an integrated ward for paediatric services, with effect from 9 October 2023. The letter also requested that each of the Respondents note their preference to transfer to an alternative ward or accept a voluntary redundancy.
It was submitted by the Applicant that a third letter was sent to each Respondent on or about 20 September 2023 to confirm that they would be transferred to a different ward following closure of the Paediatric Ward. The Respondents were to be engaged in the same role, with the same rate of pay, at the same hospital.
The Applicant contended it has met all of its consultation obligations in respect of clause 12 of the Agreement.
Further submissions – 30 October 2023
The Applicant submitted that any consideration of whether there was a concluded and enforceable contract between an employee and Healthscope for the employee to be paid a voluntary redundancy is a contract law issue and not a matter within the jurisdiction of the Fair Work Commission. In any event, Healthscope asserts that any representation in relation to voluntary redundancy was an ‘invitation to treat’ and not an ‘offer’ and accordingly the representation was not capable of acceptance by any employee.
It was submitted by the Applicant that under clause 16.6 of the Agreement, severance pay is only payable where an employee’s employment is terminated for the reason that Healthscope no longer wishes the job the employee has been doing to be done by anyone, and this is not due to the ordinary and customary turnover of labour.
Healthscope submitted that there has been no termination of employment of the employees to this dispute and therefore no severance payment is payable under the terms of the Agreement or the NES. It was further submitted that in examining whether there is a termination at the initiative of the employer for the purpose of s.386(1)(a) of the FW Act, the Full Bench in Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 (Hatcher VP, Colman DP, Saunders C, 8 December 2017) at [75] held that the examination is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment.
In considering whether there is a termination of the employment relationship, the Applicant submitted that each of the redeployment positions are covered by the Agreement and there is no change to the substantive terms and conditions of each employee’s employment. It was contended that Healthscope also has the right to transfer an employee to lower paid duties under clause 16.3 of the Agreement in circumstances of redundancy. Further, it was submitted that Healthscope also has the right to make changes to an employee’s roster in accordance with clause 26, following consultation.
Finally, the Applicant submitted that even if there was a right to redundancy pay arising from the closure of the Paediatric Unit at the Gold Coast Private Hospital (which is denied) and an employee is entitled to severance pay under the Agreement or the NES, Healthscope may make application under section 120 of the FW Act to reduce the amount of redundancy pay payable to the employee.
In such an application, the Commission would be required to consider whether Healthscope had obtained ‘other acceptable employment’ for the employee. What is acceptable employment was considered by the Fair Work Commission in Szanto v ISS Facility Services Pty Ltd[2013] FWC 3270 at [42] and [43]:
[42] In the context of s.120 of the Act the term “acceptable” is not a subjective notion involving an option available to a redundant employee. It is not a matter of choice for the redundant employee to either accept or reject alternative employment. Acceptable alternative employment is determined by way of an objective analysis involving a comparison between the terms and conditions that applied to the job that became redundant, and those terms and conditions applicable to the alternative employment.
[43] In simple terms, if the comparison between the redundant job and the alternative employment identified terms and conditions which were not comprehended by the employment and represented changes that had some significant impact on the employee, the alternative employment would be unacceptable. Conversely, if the terms and conditions of the alternative employment were comprehended by the employment which governed the redundant job or if the changed terms and conditions had little detrimental impact on the employee, then the alternative employment would be acceptable.
As Healthscope considers that each employee has been validly redeployed to a new role in the Gold Coast Private Hospital, and in the event that the employee does not commence work in the redeployment position, Healthscope will need to review whether the employee’s failure to attend for duty and to work in accordance with its direction is lawful and reasonable. The Applicant submitted that a continued failure to follow a lawful and reasonable direction by an employee may result in the termination of the employment for serious misconduct. Alternatively, a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee falls within the definition of industrial action set out in section 19 of the FW Act.
It was submitted that Healthscope would consider a 3 month review of any redeployment position if this is recommended by the Commission.
In order to assist the parties to resolve this dispute, the Applicant seeks the following observations to be issued by the Fair Work Commission:
“Having reviewed the background to this dispute and heard from the parties in Conference, the Commission makes the following observations to the parties to this dispute.
1. The Commission notes the commitment from Healthscope under the Healthscope – Queensland – Nurses and Midwives Enterprise Agreement 2021 to exploring all measures available to it to minimise involuntary redundancies.
2. Whether Healthscope made an offer of voluntary redundancy that was validly accepted by each employee is a contract law issue that is unlikely to fall within the jurisdiction of the Fair Work Commission. The employees will need to separately consider their legal rights.
3. Following consultation, each employee has been offered at least one redeployment opportunity at the Gold Coast Private Hospital. In relation to the redeployment opportunity presented to each employee, Healthscope has committed to providing the training and support needed for the employee to perform the role.
4. In deciding whether to accept the redeployment opportunity, each employee should understand that Healthscope may consider applying to the Fair Work Commission under section 120 of the Fair Work Act 2009 (Cth) to vary the amount of the redundancy pay if it considers the redeployment offer is “acceptable employment”.
5. What is acceptable employment was considered by the Fair Work Commission in Szanto v ISS Facility Services Pty Ltd[2013] FWC 3270 at [42] and [43]:
[42] In the context of s.120 of the Act the term “acceptable” is not a subjective notion involving an option available to a redundant employee. It is not a matter of choice for the redundant employee to either accept or reject alternative employment. Acceptable alternative employment is determined by way of an objective analysis involving a comparison between the terms and conditions that applied to the job that became redundant, and those terms and conditions applicable to the alternative employment.
[43] In simple terms, if the comparison between the redundant job and the alternative employment identified terms and conditions which were not comprehended by the employment and represented changes that had some significant impact on the employee, the alternative employment would be unacceptable. Conversely, if the terms and conditions of the alternative employment were comprehended by the employment which governed the redundant job or if the changed terms and conditions had little detrimental impact on the employee, then the alternative employment would be acceptable.
6. Employees are required to advise Healthscope in writing by no later than 5.00pm on Wednesday, 1 November 2023 whether they accept the redeployment role.
7. In the event an employee does not accept the redeployment offer, which is their right, they need to bring their employment to an end with Healthscope. They can then pursue any right they may consider they have in relation to the redundancy of their role in the Paediatrics Unit.
8. I recommend that Healthscope put in place a 3 month review for each of the employees who accept the offer of redeployment. At the end of the 3 months, if the employee is unhappy in the new role, Healthscope and the employee can look at any other vacancy within the hospital to determine if there is another redeployment option. If there is not, the employee will continue in the redeployment role.”
ANMF SUBMISSIONS OF BEHALF OF THEIR MEMBERS
The employment
The ANMF submitted that their members were employed by the Applicant at the Gold Coast Private Hospital (GCPH) in the Paediatric Unit.
The ANMF submitted that when their members commenced employment in the Paediatric Unit, they were provided letters which confirmed their position as Clinical Nurse in Paediatrics.[1]
The ANMF submitted Schedule D of the Agreement contains the Generic Level Statement for nursing classifications and provides the following:
“These generic level statements are intended as broad descriptions of the role at each level of the career structure and should be applicable in all health settings where nurses practise. Specific job descriptions will, however, need to be developed for the specific positions at each of the career structure levels, e.g Clinical nurse Consultant Accident and Emergency.
Background
On 15 August 2023, the Applicant sent correspondence to the ANMF. The correspondence advised of a major organisational change occurring within the Paediatric Unit at the GCPH.[2]
The ANMF submitted that on the same date, impacted employees were also provided with individual correspondence advising that their ‘role may no longer be required to be performed within the hospital…’. Attached to the correspondence was a breakdown of the monetary amounts employees would be entitled to if they accepted the offer of a voluntary redundancy.[3]
The ANMF submitted that from the week commencing 28 August 2023 to 1 September 2023, the Applicant met with impacted employees to discuss their options which included discussing the offer of redundancy payments. On 31 August 2023, the Applicant sent correspondence to impacted employees concerning the organisational change. Impacted employees were provided until 14 September 2023 to make a decision.[4]
On 1 September 2023, the Respondent sent correspondence to the Applicant concerning the organisational change.[5]
On 8 September 2023, the Applicant sent correspondence to the Respondent in response.[6]
The ANMF submitted that on 13 September 2023, their members sent further correspondence in relation to their concern with any option of redeployment and accepting the offer of voluntary redundancy.[7] On 20 September 2023, a meeting occurred where the Respondent and impacted employees were advised of the outcome of the organisational change. The decision made by the Applicant was to close Paediatric Unit and redeploy staff.
On the same date impacted employees were provided with correspondence advising of the outcome and redeployment.[8]
The ANMF submitted that between about 21 September 2023 and 3 October 2023, impacted employees outlined their concerns with the options of redeployment to management representatives of the Applicant.[9]
On 28 September 2023, the Respondent sent further correspondence to the Applicant in relation to concerns about impacted employees being redeployed.[10]
On 29 September 2023, the Applicant emailed the Respondent seeking further time to respond to the relevant correspondence.[11]
The ANMF submitted from 3 October 2023 to 6 October 2023, conversations occurred between the Respondent and the Applicant seeking to find a solution.[12]
On or about 6 October 2023, the Applicant closed the Paediatric Unit, prior to the advised date of closure which was 9 October 2023. On 9 October 2023, members of the Respondent were served copies of the Form F10 lodged in the Commission. On 13 October 2023, the Respondent sent correspondence to the Applicant’s representative.[13] On 18 October 2023, the Applicant’s representative provided correspondence in reply.
Conclusion
The ANMF submits that the positions of Clinical Nurse in Paediatrics, in which affected members of the Respondent were employed, were terminated by way of redundancy pursuant to section 119 of the Act. This is the positions of Clinical Nurse in Paediatrics were terminated at the Applicant’s initiative because the Applicant no longer requires the jobs done by the affected employees to be done by anyone.
Further Submissions – 30 October 2023
The opinion or recommendation
The ANMF on behalf of their members who are listed as Respondents to the matter seek the following relief from the Commission:
(a) The Commission make a recommendation or express an opinion, in the first instance that the Applicant has made impacted employees roles in the Paediatric Unit redundant pursuant to section 119 of the Act.
The Agreement
The ANMF submitted that the Agreement provides the relevant entitlements and conditions for staff employed in nursing classifications. Schedule D of the Agreement contains the Generic Level Statement (GLS) for nursing classifications and provides the following in relation to how the GLS is intended to operate:
These generic level statements are intended as broad descriptions of the role at each level of the career structure and should be applicable in all health settings where nurses practise. Specific job descriptions will, however, need to be developed for the specific positions at each of the career structure levels, e.g Clinical nurse Consultant Accident and Emergency.
The ANMF submitted that the intention of the GLS within the Agreement is to provide a broad and uniform framework which is indicative of what each level of nurse will carry out in their specific role.
The ANMF submitted that this classification structure also covers midwives who require their own defined registration as separate and distinct from a Registered Nurse. Therefore, the GLS is not a specific descriptor of a nursing or midwifery role.
The ANMF submitted that the Agreement does not provide a mechanism where a nurse could operate across the number of different roles within each nursing specialty area due to a commonality of shared skills, tasks and/or duties.
The employment
The ANMF submitted their members were employed by the Applicant at the Gold Coast Private Hospital (GCPH) in the Paediatric Unit and when their members commenced employment in the Paediatric Unit, they were provided letters which confirmed their position as Clinical Nurse in Paediatrics.[14]
The closure
The ANMF submitted that Denise Hartley, Director of Nursing, by email on 4 October 2023 (‘the email’) stated the following to their member:
“The paediatric ward is closing. Once the paediatric ward closes, your current role ceases to exist and our primary obligation to redeploy you into another suitable role.”
The ANMF contended that the email by Ms Hartley clearly states and indicates that the Paediatric Ward, would close and consequently their members role of a Clinical Nurse in Paediatrics would cease to exist.
The Healthscope Decision
The ANMF submitted that this matter with the Applicant and the ANMF in the same Paediatric Unit at GCPH has previously been before the Commission in Healthscope Limited v Francine Austin; Cheryl Bricknell; Lynne Macanally and Queensland Nurses’ Union of Employees vHealthscope Limited T/A Allamanda Private Hospital [2011] FWA 5599 (‘the Healthscope Decision’).
One of the questions for Arbitration by the Commission in the Healthscope Decision at paragraph [5] was:
Has the Applicant made a decision within the meaning of clause 19.4(a) of the Agreement, namely that it no longer wishes the job the Respondent has been doing to be done by anyone, and this is not due to the ordinary and customary turnover of labour?
The clause within the Healthscope and QNU -Nurses -Enterprise Agreement 2009-2012 remains unchanged to what is provided in the Agreement which provides at sub clause 16.2(1) of the Agreement:
Where Healthscope decides that it no longer wishes the job the employee has been doing to be done by anyone, and this is not due to the ordinary and customary turnover of labour, and that decision may lead to termination of employment, Healthscope shall consult the employee directly affected and, where relevant, their Union.
At paragraph 107 the Commission provided the following:
“I am satisfied that the job that the respondents had been doing as referred to in clause 19.4(a) is that of a paediatric nurse in the paediatric ward. Once a decision had been made by the Applicant that the paediatric ward would close I am satisfied that the Applicant had taken a decision that it did not wish the job the three Respondents had been doing to be done by anyone. …………………..”
The ANMF submits that the Commission should not depart from its previous decision, in relation to this issue.
Redundant
In Mr Stephen Pallett v Federation University [2017] FWC 2394 Deputy President Gostencnik at paragraph [21] referred to the decisions of Dibb v Commissioner of Taxation (2004) 136 FCR 388 at 404‒405 and Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt [2010] FWA 674 at [27] provided the following, with respect to a job being made redundant:
An employee’s dismissal may be a case of genuine redundancy even though there are aspects of the employee’s duties still being performed by other employees. In the case of an organisational restructure or downsizing, the question will be whether the previous job has survived the restructure or downsizing, not whether the duties have survived in some form. It is a question whether the employee’s ‘job’ is no longer required to be performed by anyone, rather than the employee’s ‘duties’.
The ANMF submitted that the Paediatric Unit has closed and whilst paediatric patients may still be treated at the GCPH, it is not in the same level or frequency when the Paediatric Unit was still in operation. The number of paediatric patients being treated has significantly reduced and is currently one (1) patient out of seven (7) nights.
The ANMF submitted that there are a number of factors such as the closure of the Paediatric Unit and changes to registration requirements of GCPH, which indicate that the number of paediatric patients will only decrease.
The ANMF submitted the job of a Clinical Nurse in Paediatrics which was previously performed by their members has not survived the restructuring or downsizing, even if some of the duties have survived in a limited form, this does not indicate that their members roles of Clinical Nurse Paediatric still exists.
Registration
The ANMF submitted in the alternative, if the Commission does not express an opinion or recommendation that their members’ employment was terminated by way of redundancy pursuant to sub section 119(1)(a) of the Act, the Applicant has stated they will take disciplinary action against their members.
The ANMF submitted any attempts to enact disciplinary proceedings against their members noting the use of the term ‘misconduct’ by the Applicant places significant impact and hardship upon their members for the following reasons:
(a) Affirmed disciplinary proceedings are to be reported Australian Health Practitioner Regulation Agency (AHPRA) at the time of re-registration and when that determination has been handed down. This includes professional misconduct matters, however so titled. AHPRA assesses the notification as to its seriousness on a case-by-case basis, though this period of review can take approximately 60 days.
(b) If this notification is assessed during the period of annual re-registration, it potentially leaves a registrant employee without being able to practice as a registered nurse until the assessment is completed.
(c) Such reporting requirements have the potential to delay annual re-registration time frames as it is a requirement to denote any adverse professional conduct findings.
Conclusion
The ANMF submitted their members had specific letters of offer which employed them as Clinical Nurses in Paediatrics, and Ms Hartley by email confirmed that once the Paediatric Unit closed their position would cease to exist.
The ANMF submitted this issue has been before the Commission in the Healthscope Decision where it was considered that the same Applicant had taken a decision that it did not wish the job the Respondents had been doing to be done by anyone.
The ANMF submitted if the Commission were to express an opinion or recommendation contrary to a previously decided decision, with comparable fact of an almost exact nature to the question of whether a redundancy occurred would risk creating uncertainty.
The ANMF submitted irrespective of the employment relationship allegedly surviving any redundancy situation their members positions of Clinical Nurses’ in the Paediatric Unit do not exist.
Therefore, the ANMF submits that the positions of their members in Paediatrics, in which they were employed, was terminated by way of redundancy pursuant to sub section 119(1)(a) of the Act. This is because the positions of Clinical Nurse in Paediatrics were terminated at the Applicant’s initiative because the Applicant no longer requires the jobs done by the affected employees to be done by anyone.
AYLWARD GAME ON BEHALF OF CLIENTS
On 15 August 2023 the Applicant advised all staff of the Gold Coast Private hospital that changes to the hospital structure are being proposed and this will involve the closure of the dedicated Paediatric Ward.
It was submitted that in the period 15 August 2023 to 28 August 2023, the Applicant’s representatives –
a. met individually with each of the Respondents Pllu, Nugent, Gerding Faivre, Lees, Noyes, Alphy and Tolman (together, the Respondents), at which meeting the Applicant –
i. confirmed the closure of the Ward on 9 October 2023;
ii. advised the Respondents that the ability to select voluntary redundancy would remain available to them until the date of closure of the Ward;
b. provided the Respondents with a letter (the Option Letter) identifying three options from which each respondent was to choose what they agreed to occur with their employment, including the option of voluntary redundancy;
c. provided each of the Respondents with the details of their redundancy payout.
In the period 15 August 2023 to 30 August 2023 each of Pllu, Nugent, Lees, Noyes, and Tolman accepted the offer from the Applicant of voluntary redundancy as contained in the Option Letter.
It was submitted that on 31 August 2023, the Applicant sent further correspondence to each of the Respondents (the Preference Letter) advising that further options for staff employment had been identified, and “to ensure fairness” the Applicant now wished to have staff express first and second preferences.
In response to the Preference Letter, each of the Respondents have communicated to the Applicant that they have accepted the offer of voluntary redundancy as originally made.
On or about 20 September 2023, the Applicant advised each of the Respondents that they had been redeployed to various positions.
It was submitted that each of the Respondents has raised safety concerns as to their training and experience in the roles to which the Applicant has proposed redeployment, such that each holds concerns as to being able to commence in the roles proposed without being in breach of professional obligations and registration requirements.
Further, in each instance, each of the Respondents will suffer a significant reduction in wage payments and allowances, such that the position to which they are redeployed cannot be considered as commensurate with their former position so as to be reasonable for redeployment.
In the circumstances, it was submitted the Respondents are truly redundant to the Applicant’s business.
Further Submissions – 30 October 2023
It was submitted pursuant to clause 12(5) of the Agreement, a grievance or dispute in relation to the Agreement or the National Employment Standards (NES) is to be notified to the Commission, and pursuant to clause 12(6) the parties agree the dispute will be conciliated by the Commission. Pursuant to clause 12(7), the parties agree the Commission may make recommendations following a conciliation conference.
Pursuant to ss 595(2) and 739 of the FW Act, the Commission may deal with the dispute. Pursuant to s739(3), the power of the Commission in dealing with the dispute is limited by clause 12 of the Agreement. In conciliating, the making of recommendations that can resolve disputes is appropriate: Clermont Coal Pty Ltd v CFMEU [2015] FWCFB 3332 at [29].
The chronology of events relied on by Respondents is as set out in Part 2.2 of the Reply dated 26 October 2023 and filed 27 October 2023.
All Respondents were employed by the Applicant to work in the specialist paediatric ward at the Gold Coast Private Hospital.
It was submitted that prior to 15 August 2023, the Applicant made the determination that it was going to close the paediatric ward, and subsequently provided to each of the Respondents the Option Letter referred to in paragraph 2(b) of the Reply. The Option letter is in the same terms as that attached as ANMF-03 to the Reply filed by the Australian Nursing and Midwifery Federation (the ANMF Reply).
It was submitted the content of that document identifies that, at that point in time, while the Respondents were “invited to provide feedback about any measures to avoid or reduce the adverse effects of the changes”, the Applicant in fact offered to the Respondents a choice of three options for the future of their employment –
a. Redeployment to Ward 9 at the same hospital, with any necessary training or support to be provided;
b. Redeployment to an available role within the hospital or the applicant’s health care provision network; or
c. Voluntary redundancy. With regard to this option, the individual respondents were provided with a calculation of their redundancy benefits.
It was submitted the fact that the effect of the Option Letter is an offer to vary the employment relationship is underscored by the phrasing of the correspondence – each Respondent was invited to attend a further meeting “in one week to answer any questions you may have about the options available to you, and to discuss your decision.”
It was submitted there is no phrasing indicating the Applicant merely was seeking the Respondents’ input, such as requesting a response with a preference, or wording indicating the Applicant would take into account any “decision”, or that a further process would occur whereby employees would be advised of a final outcome. This was an offer for the Respondents to choose the one they accepted.
In addition, it was submitted the fact the Option Letter reflected an offer is also supported by the communication by the Applicant to the Respondents that their ability to elect to accept voluntary redundancy would be available to them up until the time of closure of the paediatric ward. It would make no sense for such a commitment to be made if it were not something the employee could accept, as opposed to indicate a preference for.
It was submitted further to paragraph [3] of the Reply, in addition to Pllu, Nugent, Lees, Noyes and Tolman accepting the offer prior to 30 August 2023, Ms Gerding Faivre also accepted the offer prior to that date, in writing.
It was only on 31 August 2023, after the above acceptances of the offer of redundancy, that the Applicant provided correspondence to all Respondents referring to “preferences”, being the Preference Letter referred to in paragraph [4] of the reply. All Respondents were forwarded correspondence in the form of the letter attached as ANMF-04 to the ANMF Reply.
It was submitted this letter indicates the true motive of the Applicant – to have the Respondents resile from their initial acceptance under the guise of having identified more possible options. The use of the words “to ensure fairness for current staff” belies the fact that choices have already been made. It is an attempt to have the Respondents enter into consultation, not continue prior consultation.
It was submitted all Respondents have since confirmed their election of voluntary redundancy to the Applicant, including Ms Alphy. None have resiled from their election.
It was submitted the Applicant closed the paediatric ward on 6 October 2023, such that the prior specific positions related to paediatric care are no longer required by the Applicant. The Applicant has moved to an “integrated service” within ward 9, whereby all staff are required to deal predominantly with adult patients. As indicated by the Offer Letter, to move to such care training and retraining are required, with the Respondents career path moved away from paediatric nursing.
In terms of s119 of the Act, it was submitted the effect of the closure of the paediatric ward and change to an integrated service model in Ward 9 is that the Applicant has distributed the former duties in relation to paediatric care to the other staff of ward 9, in addition to their former duties. The roles of the Respondents are no longer required to be done by anyone, such that the Respondents roles are non-existent.
In the circumstances, it is submitted that it is open to the Commission to recommend –
a. that proper resolution of the dispute should involve agreement by the Applicant to act upon the acceptances of the Respondents of voluntary redundancy;
b. that the opinion of the Commission is that the roles of the Respondents became redundant on closure of the paediatric ward.
OPINION
Should this dispute proceed to arbitration I accept the Applicant’s submission that to the extent the issue concerning whether an offer and acceptance had occurred in relation to employees claiming to have accepted offers of voluntary redundancy, is not a matter falling within the matters that the Commission has power to determine under the dispute settlement procedure as it is not a dispute concerning the terms of the Agreement or the NES. It is often the case that the seeking of expressions of interest in voluntary redundancy by an employer would generally be considered an invitation to treat, and not an offer capable of acceptance. However, it is noted that the Applicant’s earlier correspondence setting out the options did not describe the voluntary redundancy option in terms of being a call for expressions of interest.
The Commission does not have any evidence before it at this stage. The opinions expressed here are necessarily qualified to the extent that there are some unresolved matters of fact in dispute concerning the question of whether the nine employees, in each of their particular circumstances, will have been terminated at the initiative of the employer were they not to accept offers of redeployment. Subject to that qualification, it would appear from at least the submissions that at this stage terminations of employment have not yet taken effect because as I understand the situation, final notification of acceptance or rejection of offers of redeployment have not been received by the Applicant from each of the Respondents.
The Applicant referred to the Full Bench decision in Khayam v Navitas English Pty Ltd t/a Navitas English to support the proposition that in this case where an employee does not accept the other employment that has been offered, that can be understood to result in the employee bringing the employment to an end at their own initiative. As I understand it, the Applicant’s argument is that despite the original contracted position of employment having been brought to an end because the Applicant no longer required it to be performed by anyone, the employment relationship has not been terminated by the employer because the employer has not communicated a termination of employment to any of the employees, and the employer has offered a different position which, if accepted, allows the employment relationship to continue, and if rejected brings the employment relationship to an end at the employees initiative. Without going into detail, the Applicant has referred to other factors that support its submission that it is entitled to direct employees to perform the other employment.
Repeating the earlier acknowledgment that there may be unresolved factual issues, I do not accept that the decision in Khayam v Navitas stands for the proposition that where an employer no longer requires a job to be done by anyone but offers a different job that is not accepted by an employee, that the employment relationship in those circumstances is brought to an end at the initiative of the employee by their non acceptance of a different job offer. Khayam v Navatas was concerned with the proper interpretation of section 386(1)(a) in the context of the non-renewal of an outer limits contract, following a series of earlier outer limits contracts in the context of an unfair dismissal application. This is distinguishable from the circumstances here.
Redundancy arises when the duties of a role have changed so much that for all practical purposes the original role no longer exists. Both the ANMF and the representative for the other group of seven employees submitted, and I don’t understand it to be contested, that the members commenced employment in the Paediatric Unit, and they were provided letters which confirmed their position as being in Paediatrics. The Applicant advised it intended to undertake major organisational change, and it ultimately decided to close the Paediatric Unit. As I understand it from the submissions, the new restructured model involves an integrated model of care where the nurses will predominantly be providing care to adults, and also a smaller proportion of paediatric patients.
It is my opinion on the limited material before the Commission that it is more than likely that the positions of the nine nurses became redundant at the time of the closure of the Paediatric Unit as the job they were doing was no longer required to be done by anyone. Offers of redeployment have been made. In the course of the dispute conference, it was proposed that the parties have an opportunity to consider the Commission’s recommendation before the employees made a final decision whether to accept or reject the offers of redeployment. I recommend that each of the nurses should advise the Applicant in writing by 5pm the day following the issue of this recommendation, whether they accept or reject the offers of redeployment. That time frame should allow sufficient time for conferring with their representatives before advising the Applicant of their final response, as the parties discussed near the conclusion of the conference on 30 October the need for decisions to be finalised.
In the event that offers of redeployment are accepted the continuity of employment will not have been broken by the fact of the former role being made redundant, as the acceptance of an offer of redeployment results in the continuation of the employment relationship, and no termination of employment will have occurred. In the event offers of redeployment are rejected, it is my recommendation that the Applicant then proceed to take the necessary steps to advise employees who have rejected offers of redeployment that their employment is to be terminated on the basis of redundancy, and at that point it would be open for the Applicant to proceed to bring an application under section 120 of the Fair Work Act 2009 to seek to vary redundancy pay on the grounds that they have obtained other acceptable employment. In my view it would not be appropriate to commence a disciplinary process in the particular circumstances.
I am inclined to the view that pursuing this section 739 application to the arbitration stage is not the optimal way of dealing with matter, as it is apparent that all parties are seeking finality to as whether offers of redeployment are accepted or rejected, and the formal determination of this section 739 application will delay that process. Another good reason not to pursue arbitration of this application is the observation already made that the Commission cannot make a binding determination in relation to the element of the dispute as it pertains to the contractual argument. That element of the dispute, if it is to be pursued, would need to be pursed in a court of competent jurisdiction.
It is a matter for the parties as to the manner in which they decide to bring claims open to them, however it is presumed if the Applicant accepts this opinion, a section 120 application will shortly follow. If the section 120 application is unsuccessful because the Commission was not satisfied that the other employment offered was, other acceptable employment, there would be no utility in the contractual dispute being pursued as the redundancy amounts would be required to be paid.
COMMISSIONER
[1] ANMF-01 to Form F1 Reply from the ANMF dated 25 October 2023 and filed on 26 October 2023
[2] ANMF-02 to Form F1 Reply from the ANMF dated 25 October 2023 and filed on 26 October 2023
[3] ANMF-03 to Form F1 Reply from the ANMF dated 25 October 2023 and filed on 26 October 2023
[4] ANMF-04 to Form F1 Reply from the ANMF dated 25 October 2023 and filed on 26 October 2023
[5] ANMF-05 to Form F1 Reply from the ANMF dated 25 October 2023 and filed on 26 October 2023
[6] ANMF-06 to Form F1 Reply from the ANMF dated 25 October 2023 and filed on 26 October 2023
[7] ANMF-07 to Form F1 Reply from the ANMF dated 25 October 2023 and filed on 26 October 2023
[8] ANMF-08 to Form F1 Reply from the ANMF dated 25 October 2023 and filed on 26 October 2023
[9] ANMF-09 to Form F1 Reply from the ANMF dated 25 October 2023 and filed on 26 October 2023
[10] ANMF-10 to Form F1 Reply from the ANMF dated 25 October 2023 and filed on 26 October 2023
[11] ANMF-11 to Form F1 Reply from the ANMF dated 25 October 2023 and filed on 26 October 2023
[12] ANMF-11 to Form F1 Reply from the ANMF dated 25 October 2023 and filed on 26 October 2023
[13] ANMF-12 to Form F1 Reply from the ANMF dated 25 October 2023 and filed on 26 October 2023
[14] ANMF-01 to Further Submissions dated 30 October 2023
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