Teeca Teresa Mullins v Tricare Jindalee Aged Care Pty Ltd T/A Jindalee Aged Care Residence
[2023] FWC 1995
•11 AUGUST 2023
| [2023] FWC 1995 |
| FAIR WORK COMMISSION |
| RECOMMENDATION |
Fair Work Act 2009
s.739—Dispute resolution
Teeca Teresa Mullins
v
Tricare Jindalee Aged Care Pty Ltd T/A Jindalee Aged Care Residence
(C2023/3637)
| COMMISSIONER SIMPSON | BRISBANE, 11 AUGUST 2023 |
Alleged dispute about any matters arising under the modern award and the NES; [s146]
On 26 June 2023, Ms Teeca Teresa Mullins (Ms Mullins / 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. Tricare Jindalee Aged Care Pty Ltd T/A Jindalee Aged Care Residence is the Respondent in the matter (the Respondent).
The matter was listed for a conference on 29 June 2023. After the conference the Commission received an email form the QNMU seeking that the Commission provide an Opinion on the question raised in conciliation of:
“Does the Applicant, Ms Mullins, have an entitlement to redundancy pay from Tricare under s 119 of the Fair Work Act given we say the rejected offer of contract to transfer her employment from Tricare to Elderly Care was on terms and conditions not similar to and overall, less favourable than, the Applicant's contract with Tricare which ended 30 June 2023.”
The Respondent emailed the Commission noting that the Respondent had no objection to the Commission expressing an opinion in relation to the dispute application.
The Dispute
The Applicant was a Registered Nurse (RN) employed part-time with the Respondent at Jindalee Aged Care facility since 2008. The Applicant is employed under the Nurses Award 2020 (the Award) and the Act. There is no Enterprise Agreement covering TriCare.
The Applicant was advised by the Respondent via email on 12 May 2023 her employment would cease on 30 June 2023 as a newly established organisation, Elderly Care Limited, was to be appointed to provide aged care services for TriCare from 1 July 2023.
The 12 May correspondence states, “Elderly Care will offer you employment in your same position on the same or substantially similar terms and conditions from 1 July 2023”. Further, correspondence from the Respondent dated 23 May 2023 details the Applicant’s employment can transfer to Elderly Care from 1 July 2023 and states, “you will be offered a contract of employment with Elderly Care Limited (Elderly Care) with a commencement date of 1 July 2023 to continue working at TriCare’s owned facilities”.
The Applicant’s F10 indicated that Elderly Care was registered as a charity organisation on 28 April 2023 and the Directors are Mr Peter O’Shae and Damien O’Shae. On 31 May 2023, the Applicant was provided a new contract offer to commence from 1 July 2023 with Elderly Care (the offered contract).
The Applicant submitted the offered contract includes a reference to the Nurses Award 2020 and states the Applicant may accept the offered contract and be employed as an RN with Elderly Care, or alternatively be terminated or made redundant from TriCare effective 30 June 2023 but with no entitlement to redundancy pay. Section 119 of the Act provides for redundancy payments when a position no longer exists.
The Applicant’s F10 indicated that the Respondent gave all staff one (1) week to accept the offered contract. Following concerns raised by staff and unions, this period was extended twice through to 22 June 2023. The QNMU views the terms and conditions in the Elderly Care offered contract are, on the whole, less favourable than those in the Applicant’s current employment contract with TriCare.
The QNMU’s concerns regarding the Elderly Care offered contract include:
· The inclusion of a six (6) month probation period where this has already been served. This results in the ability for the Respondent to terminate the Applicant’s employment within six (6) months potentially breaking continuous service;
· the hourly rate of pay reflects the Applicant’s current hourly rate and does not include the 15% increase to modern award rates of pay from the first pay period after 30 June 2023 due to the Work value case - Aged care industry and the 5.75% increase to modern award rates of pay due to the 2023 annual wage review decision;
· the inclusion of an ‘Absorption and offset’ clause which is ambiguous in its intent. This clause is not in the Applicant’s current contract of employment and may lead to an overpayment as the offered contract does not include an over Award hourly rate to absorb or offset any Award entitlements;
· the Applicant has worked at Jindalee Aged Care Residence for 15 years however the offered contract states Elderly Care, “may reasonably require you to work in a different location or travel to other locations”;
· the Applicant will be required to undertake a “pre-employment functional capacity assessment” which will be used to determine if the Applicant is suitable for her position despite already working in her RN position without any requirement for a functional assessment; and
· no details of the Applicant’s personal leave, annual leave and long service leave accruals. If this is a transfer of business as per s.122 of the Act and continuity of service is assured, this should be included in the offered contract.
The QNMU’s position is that the sum of these concerns represents a substantial change to the current terms and conditions.
The Applicant raised concerns and requested the Respondent vary the offered contract to have the probation period removed and 1 July 2023 wages included in the offered contract. The Respondent provided an emailed response to the Applicant.
The QNMU emailed the Operational Manager, Ms Gemma Zangari, on 12 June requesting the offered contract be varied due to a number of concerns detailed above.
The Respondent provided a response on 15 June 2023. This correspondence provides several assurances and answers regarding the offered contract, however, the QNMU submits a varied offer from Elderly Care should be presented to the Applicant. The QNMU submitted in its current state, the offered contract is less favourable than the Applicant’s current TriCare contract, or alternatively, includes terms which will disadvantage the Applicant and result in an offer which is not substantially similar to her current position.
The Applicant’s F10 indicated that the Respondent has stated the Applicant’s position with TriCare will cease on 30 June 2023, however, if the Applicant rejects the offered contract with Elderly Care, they are not entitled to redundancy pay as per s.119 of the Act.
The Applicant’s F10 indicated the Respondent is relying on s.122(3) of the Act, however, have not made an application to the Commission under s.120 that acceptable alternative employment has been offered by way of transfer of employment and therefore seek variation to redundancy pay.
The QNMU’s position is the Applicant is entitled to a redundancy payment under s.119 of the Act as the terms and conditions of the offered contract are less favourable and not substantially similar to the current contract of employment with TriCare.
The QNMU argues s.122(4) should apply and the Applicant should be paid a redundancy amount because s.122(3) would operate unfairly given the terms and conditions detailed in the offered contract.
As the Commission understands, the Respondent has indicated in writing that it agreed to waive the probation period for Ms Mullins. This appears to remove a concern that the terms and conditions of employment may not be substantially similar to, and on an overall basis, no less favourable on account of the probation issue. In relation to the concern that the contract offered in June did not reflect the increased rates in the modern award from the work value case in the aged care industry, the Respondent indicated in the conference before the Commission that the contract was not intended to displace award entitlements that will flow from the work value case. An employment contract cannot legally displace award entitlements or the NES. As the Award will apply to the work offered to Ms Mullins, the Award entitlements will apply under the contract offered. This does not appear to raise the prospect that the offer of employment is not on terms and conditions substantially similar to, and on an overall basis, no less favourable on the basis that the offer would include inferior rates of pay.
As the Commission understands Ms Mullins was paid as per the Nurses Award with TriCare. The inclusion of an ‘Absorption and offset’ clause in the contract can only operate to offset payments over the Award. This does not raise a concern that the offer of employment is not on terms and conditions substantially similar to, and on an overall basis, no less favourable, as the Award applies as the minimum standard under the offer as it has done at Tricare.
The new proposed contract of employment includes a term that says Elderly Care “may reasonably require you to work in a different location or travel to other locations.” TriCare asserted it would have this right under Ms Mullins existing contract. It is not clear from Ms Mullins existing employment contract that TriCare would have been entitled to direct her to work at another TriCare workplace given it stated that her place of employment was at Jindalee. The inclusion of the words ‘..reasonably require..’ offer protection against Ms Mullins being required to work in a different location or travel to other locations where the requirement would be unreasonable. I am satisfied that the inclusion of those words in the contract does not cause the offer to be other than on terms and conditions substantially similar to, and, considered on an overall basis, no less favourable than, the terms and conditions with TriCare.
The Respondent submitted in the conference that it was entitled to require an employee to undertake a fitness for work assessment under the existing contract. I am satisfied that as TriCare would be entitled to require such an assessment, the requirement to do so under the new offer of employment does not render it to be on terms and conditions that are not substantially similar to, and, considered on an overall basis, no less favourable than at TriCare.
I am satisfied that the set of circumstances here fall within the meaning of a transfer of employment situation contemplated by section 122 of the Act. Section 122(3) provides that an employee is not entitled to redundancy pay under section 119 in relation to termination of their employment with an employer if:
(a)The employee rejects an offer of employment made by another employer that:
(i)Is on terms and conditions substantially similar to, and, considered on an overall basis, no less favourable than, the employee’s terms and conditions of employment with the first employer immediately before the termination; and
(ii)Recognises the employee’s service with the first employer; and
(b)Had the employee accepted the offer, there would have been a transfer of employment in relation to the employee.
It is not in dispute that the new employer proposed to offer employment that recognised Ms Mullins service with TriCare. As already stated, I am satisfied if Ms Mullins had accepted the employment there would have been a transfer of employment in relation to Ms Mullins.
On the basis of all of the above it is my opinion that Ms Mullins would not be entitled to redundancy pay under section 119 in relation to the termination of her employment by TriCare if she did not accept the offer of employment with Elderly Care by force of section 122(3) of the Act. I would not be satisfied that Section 122(3) would operate unfairly to Ms Mullins such that it would be appropriate to make an order under section 122(4) that TriCare pay Ms Mullins any amount of redundancy pay on the facts as they have been explained to the Commission in the material filed and at the conference.
COMMISSIONER
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