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COVID-19 not an unprecedented excuse to ignore workplace obligations

The Fair Work Commission has issued a stern warning to employers not to use COVID-19 to as an excuse to not comply with workplace obligations towards employees.

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In the recent case of Health Services Union v Huntingdon Nursing Home Pty Ltd [2021] FWC 1730 (30 March 2021), the Union challenged the legal validity of Huntingdon’s “one employer” policy for employees, which sought to direct its employees to either work exclusively for Huntingdon or not at all.

Huntingdon claimed that it was legally required to impose the policy because of State and Federal Government COVID-19 restrictions and unilaterally imposed the policy without consultation as required under the enterprise agreement.

Huntingdon was unable to direct the Commission to any single source of the alleged legal requirement to have the policy.

In rejecting the basis on which Huntingdon had claimed the policy was necessary, DP Boyce concluded that the unilateral imposition of the one employer policy breached the consultation and variation provisions of the enterprise agreement, breached the employees’ contracts of employment, and breached the NES.

DP Boyce emphasised that: “The COVID-19 pandemic does not provide an employer with a unilateral right to vary or otherwise amend an employee’s conditions of employment, or observe or not observe the terms of an award, enterprise agreement, of the NES.”

Huntingdon was directed to return all employees subjected to the one employer policy to their pre-pandemic hours and recommended Huntingdon back pay employees for wages and entitlements forgone by employees in the application of the policy.

Lessons for employers

  1. Even “unprecedented” challenges such as COVID-19 must be addressed in compliance with usual requirements such as consultation provisions under enterprise agreements.
  2. Always seek advice before implementing policies that could impact upon terms and conditions of employment.

Written by Mathew Reiman

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Our team are here to provide the right advice for your business and workforce. If you have a question or require assistance, please contact Andrew Douglas or Kim McLagan.

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