Fair Work Act 2009 s.739—Dispute resolution

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

[1] On 7 July 2022, the Australian Nursing and Midwifery Federation (ANMF/the Applicant) filed an application to the Fair Work Commission (the Commission) pursuant to s.739 of the Fair Work Act 2009 (the Act) seeking that the Commission deal with a dispute pursuant to the dispute settlement procedure at clause 9 of the Jeta Gardens Enterprise Agreement 2019 (the Agreement). The Respondent to the dispute application is Jeta Gardens (QLD) Pty Ltd T/A Jeta Gardens (Jeta Gardens/the Respondent).

[2] The scope of the dispute settlement procedure is wide in that it relates to matters under the Agreement, the National Employment Standards and any other industrial matter. The clause also specifies that the Commission may deal with the dispute by arbitration and make a determination.

[3] The dispute application was said to relate to clause 9.4 and 27.1 (a) of the Agreement being about Overtime Penalty Rates, regarding hours worked in excess of the rostered ordinary hours on any day or shift.

[4] The Application set out that the dispute concerns the Respondent employer’s direction on 15 February 2022 that staff of the Respondent who are members of the ANMF who “…have not had COVID in the past 35 days should RAT test (sic) prior to entry to the facility each day they come to work”.

[5] The Applicant submitted that the Respondent had made it clear that staff were to present to the workplace at least 15 minutes prior to the start time of their shift to allow the staff member to complete their Rapid Antigen Test (RAT) and attend the workplace on time. It is apparent from the evidence that the dispute relates to a period from 15 February 2022 to 31 August 2022 concerning employees taking RATs, and whether employees were entitled to be paid in relation to the time to undertake those RATs.

[6] The matter was listed for Hearing on 16 September 2022. Ms Courtney Trevascus, Industrial Officer for the ANMF, appeared for the Applicant and the Respondent sought leave to be represented by Mr Ben Gee of FCB Workplace Law. I granted leave for FCB Workplace Law to appear for the Respondent on the basis that it would assist me to deal with the matter more efficiently taking into account the complexity of the matter.

Jurisdiction to deal with the Dispute

[7] The ANMF submits that s.738 of the Act provides that the Division applies if:

“…

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6);

…”

[8] It was further submitted that Clause 9 of the Agreement is a term that provides a procedure for dealing with disputes. Section 739 of the Act relevantly provides:

“Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

…

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

…

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[9] Clause 9 of the Agreement relevantly provides:

“9. Dispute resolution

9.1 If a dispute relates to:

(a) a matter arising under this Agreement; or

(b) the National Employment Standards; or

(c) any other industrial matter;

this clause sets out procedures to settle the dispute.

…

9.4 If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to the Fair Work Commission.

9.5 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.

[10] The ANMF submitted this dispute related to a matter arising under this Agreement, or in the alternative; any other industrial matter, in the terms of subclause 9.1 of the Agreement.

[11] The ANMF submitted that there appears to be no dispute in relation to jurisdiction. The ANMF submitted the dispute arises, particularly under clause 10.5 and the meaning of the word “worked” is in dispute.

[12] The ANMF submitted that it has never said that clause 10.5 of the Agreement is the only term of the Agreement that would empower the Respondent to direct its employees to comply with the Respondent’s Testing Protocol. The Applicant's Outline of Submissions refers to clause 10.5– Duties within Skill, Competency and Training; as well as Clause 27.1 – Overtime penalty rates; Clause 24 – Roster, and Clause 18 – Payment of wages.

[13] The ANMF submitted that the relevant contract of employment also refers to the performance of work. The ANMF relies on the wide ambit of clause of 9 of the Agreement as it pertains to disputes in relation to industrial matters, and the question of what work or worked means is an industrial matter.

[14] The Respondent contends that the subject matter of this dispute is not a matter arising under the Agreement or the National Employment Standards.

[15] The Respondent submits that the Agreement does not define “industrial matter” for the purpose of the dispute resolution procedure in clause 9. The Respondent said it did not make submissions that the matter was not an industrial matter, however submitted that it is a matter for the Applicant to address, and the balance of its case was put on the basis that the Commission will find it is.

[16] The ANMF submitted that the phrase “industrial matter” is used widely across Australian jurisdictions to refer broadly to matters related to work. The question of whether an employee has performed work and service for which wages at the applicable overtime rate are payable, is indisputably an industrial matter.

[17] The ANMF submits that the evidence before the Commission shows that the “testing area” has always been located on the premises of the Respondent’s business, either within the lobby of each building, or directly outside the doors to each building.

[18] Historically, Awards could only be made about the settlement of “industrial matters”. The Workplace Relations Act 1996 definition of industrial matters included “all matters pertaining to the relations of employers and employees”.

[19] I am satisfied that dispute concerning whether whether the employees were entitled to be paid in relation to the time to undertake RAT’s is an industrial matter.

Agreed Statement of Facts

[20] The parties provided the Commission with the following Agreed Statement of Facts as follows.

“PRELIMINARY

1. The parties agree on the following facts for the purpose of this proceeding.

BACKGROUND

2. The Applicant is a registered trade union with coverage of nurses and personal carers employed in residential aged care facilities in the State of Queensland.

3. The Respondent is a national system employer of employees who deliver services in retirement living, home care, and residential aged care in Bethania, Queensland.

4. The Jeta Gardens Enterprise Agreement 2019 (AG2019/3942) (the Agreement) covers and applies to the Applicant, the Respondent and employees engaged as Registered Nurses, Enrolled Nurses, Personal Carers and other positions in the classifications contained in Schedules A, B and C of the Agreement (nursing and care staff), including members of the Applicant.

DIRECTION TO PERFORM RAPID ANTIGEN TESTS

5. On 15 February 2022, the Respondent sent an email to all nursing and care staff with the subject “Nurse Advisor MEMO: RAT testing for staff”, regarding the process for COVID screening prior to entering the facility.

6. On 13 May 2022, the Respondent sent an email to all residential aged care staff with the subject “RAT testing MANDATORY REQUIREMENT”.

7. Since 13 May 2022, all employees have been expected to:

a. arrive at least 15 minutes before the rostered start time of their shift at the facility,

b. complete a COVID-19 Rapid Antigen Test (RAT) in the testing area,

c. remain in the testing area until the RAT result is known, which is expected to be 15 minutes,

d. write the RAT result in the folder placed in the testing area for this purpose, and

e. ensure hand hygiene and dispose of all COVID test kit material in the bins provided in the testing area.

8. The “testing area” is a signed space that is located outside the entrance to the facility.

9. Since 15 February 2022, the Respondent has not paid any nursing or care staff member for taking a RAT prior to the rostered start of a shift at the facility.

ROSTERS

10. The Respondent produces a fortnightly roster of the daily ordinary working hours and starting and finishing times of nursing and care staff, as required by clause 24(b) of the Agreement.

11. This roster is emailed to nursing and care staff prior to the commencement of the roster period.

12. The time spent by nursing and care staff in complying with the RAT testing protocol in the testing area is not included in the rosters published by the Respondent.”

Questions for Arbitration

[21] Ultimately the parties were unable to agree on a question or questions for arbitration. The ANMF initially proposed three questions for arbitration as follows:

1. Between 15 February 2022 and 13 May 2022, did those employees of Jeta Gardens (QLD) Pty Ltd who are covered by the Jeta Gardens Enterprise Agreement 2019 perform work and service to the employer when they complied with the employer’s direction to:

a. arrive at the facility at least 15 minutes before their rostered start time,

b. complete a COVID-19 Rapid Antigen Test, and

c. remain in the testing area until the COVID-19 Rapid Antigen Test result is known?

2. Since 13 May 2022, have those employees of Jeta Gardens (QLD) Pty Ltd who are covered by the Jeta Gardens Enterprise Agreement 2019 performed work and service to the employer when they complied with the employer’s direction to:

a. arrive at the facility at least 15 minutes before their rostered start time,

b. complete a COVID-19 Rapid Antigen Test, and

c. remain in the testing area until the COVID-19 Rapid Antigen Test result is known?

3. Where the answer to questions 1 and/or 2 is “yes”, is the employer required to:

a. Pay wages to the employee for that work and service; and/or

b. Pay wages to the employee for that work and service at the applicable overtime penalty rate in accordance with clause 27.1 of the Jeta Gardens Enterprise Agreement 2019?

[22] The Respondent rejected the ANMF’s proposed questions for arbitration and proposed the following five questions:

1. Is an Employee who takes a Rapid Antigen Test (Test) prior to their rostered start time of work on a day or shift performing work that is specifically provided for in the Jeta Gardens Enterprise Agreement 2019?

2. If the answer to question 1 is ‘yes’ was the Employee entitled to be paid for taking a Test prior to their rostered start time of work on a day or shift in the period 15 February – 3 March 2022 inclusive?

3. If the answer to question 1 is ‘yes’ was the Employee entitled to be paid for taking a Test prior to their rostered start time of work on a day or shift in the period 4 March – 12 May inclusive?

4. If the answer to question 1 is ‘yes’ was the Employee entitled to be paid for taking a Test prior to their rostered start time of work on a day or shift in the period 13 May -31 August 2022 inclusive?

5. If the answer to question 1 is ‘yes’ is the Employee entitled to be paid for taking a Test prior to their rostered start time of work on a day or shift on or after 1 September 2022?

[23] The ANMF submitted revised questions for arbitration based on the views of the Respondent as follows:

1. Between 15 February 2022 and 3 March 2022, did those employees of the Respondent who are covered by the Jeta Gardens Enterprise Agreement 2019 perform work and service to the employer when they:

(a) arrived at the facility at least 15 minutes before their rostered start time,

(b) completed a COVID-19 Rapid Antigen Test, and

(c) remained in the testing area until the COVID-19 Rapid Antigen Test result was known?

2. Between 4 March 2022 and 12 May 2022, did those employees of the Respondent who are covered by the Jeta Gardens Enterprise Agreement 2019 perform work and service to the employer when they:

(a) arrived at the facility at least 15 minutes before their rostered start time,

(b) completed a COVID-19 Rapid Antigen Test, and

(c) remained in the testing area until the COVID-19 Rapid Antigen Test result was known?

3. From 13 May 2022 until 1 September 2022, have those employees of the Respondent who are covered by the Jeta Gardens Enterprise Agreement 2019 performed work and service to the employer when they:

(a) arrived at the facility at least 15 minutes before their rostered start time,

(b) completed a COVID-19 Rapid Antigen Test, and

(c) remained in the testing area until the COVID-19 Rapid Antigen Test result was known?

4. Where the answer to questions 1, 2 and/or 3 is “yes”, is the Respondent required to:

(a) Pay wages to the employee for that work and service; and/or

(b) Pay wages to the employee for that work and service at the applicable overtime penalty rate in accordance with clause 27.1 of the Jeta Gardens Enterprise Agreement 2019?

[24] In closing oral submissions, the Respondent submitted question 1 and question 2 in the ANMF revised questions are inappropriate for the Commission to consider because they assume facts which are contested.

[25] The Respondent accepts that issue does not apply to the third question. The Respondent submits that the fourth question is also inappropriate because it would amount to an invitation for the Commission to issue a declaration of rights which is a matter for the Court.

[26] The Respondent referred to the remedy sought in the Form F10 application which was as follows:

“The determination sought is an order of the Fair Work Commission in these terms:

The undertaking of a COVID-19 Rapid Antigen Test by an employee of Jeta Gardens (QLD) Pty Ltd pursuant to an instruction by the employer, is work and service to the employer for which the employer must pay wages to the employee at the applicable overtime rate.”

[27] The Respondent in closing oral submissions said it did not take issue with the jurisdiction of the Commission to deal with the question of whether the undertaking of a RAT by an employee of the Respondent pursuant to an instruction by the Respondent is work.

[28] The Respondent however submitted that the remedy as described to the extent that it sought an order that the Respondent must pay wages is a matter for the Court and not the Commission.

[29] The Respondent submitted that for the Commission to answer the question as to whether overtime was payable in the positive or the negative would be in effect to declare rights under the enterprise agreement. The Respondent submitted further that the Commission can only deal with the matter as it pertains to the two employees who gave evidence. The Respondent submitted there is not a set of facts before the Commission to allow that determination to be made.

[30] Even though the parties were unable to agree on a question, or questions for arbitration, it would seem reasonably clear that the proper characterisation of the dispute is about determining whether employees performed ‘work’ which attracted an applicable rate of pay, when attending the employer’s premises to submit to a RAT. If the answer to this is yes, then during which periods are employees entitled to have been paid for the time it took them to perform this ‘work’.

[31] The Respondent submitted that on the face of the evidence provided by the ANMF, the dispute cannot be in respect of any person other than the two ANMF witnesses employed at the facility.

[32] I accept, in part, the Respondent’s submission that given the resolution of this dispute involves resolving contested facts it would be unsafe to make a final determination in relation to all employees of the Respondent. I agree with that submissions in relation to the period from 15 February up to 13 May 2022 and it is appropriate to confine the determinations in this matter to the two employees who have given evidence in relation to the facts in that time period. Having said that, it is to be expected that the resolution of this dispute as it pertains to those two employees will inform and assist in resolving any dispute as it pertains to other employees whose circumstances have not been the subject of evidence for that time during that time.

[33] I am prepared however, to deal with the dispute as it pertains to all employees entitled to be represented by the ANMF and covered by the Agreement, and who were subject to the direction of the Respondent issued in writing on 13 May 2022, in relation to the period from 13 May to 31 August 2022. This is on the basis that there is no factual dispute about the content of the direction issued on 13 May, and generally many factual disputes that pertained to the period from 15 February 2022 to 12 May do not arise in the period from 13 May to 31 August 2022.

[34] I will return to the issue of the questions for arbitration after having considered the evidence.

EVIDENCE

[35] Ms Jane Harbour (Personal Carer) provided a statement on behalf of the Applicant dated 2 September 2022. 1 Ms Nicola Jeffery (Personal Carer) 2 and Ms Courtney Trevascus also provided statements on behalf of the Applicant on the same date. Ms Trevascus was not required for cross examination.3 The ANMF filed another statement from Ms Amanda Day but decided to withdraw the statement as Ms Day was unavailable to give evidence on the day.

[36] The Respondent raised several objections to the statements of Ms Harbour and Ms Jeffrey concerning form, collusion, opinion, relevance and hearsay. I determined not to strike out any parts of the statements but noted the objections and noted that they would be taken into account and it would be a matter of the weight to be afforded to the challenged evidence.

[37] Dr Drew Dwyer provided a statement on behalf of the Respondent of 13 September 2022. 4 Mr Wesley Carter also provided a statement for the Respondent of 13 September 2022.5 It was noted before the conclusion of Mr Carter’s evidence that there were certain typographical errors at paragraph 35 noting a reference to an attached document should have been “WC6” and a similar error at paragraph 40 where a similar reference should have been “WC5”.

[38] The Respondent placed particular emphasis on the similarity, and in part identical content in the statements of Ms Harbour and Ms Jeffrey. Both Ms Harbour and Ms Jeffrey gave evidence that Ms Trevascus assisted them by taking statements from them over the phone. Ms Harbour confirmed she understood the contents of the statement and adopted it as her own. Ms Harbour said she did not discuss the contents of her statements with Ms Day or Ms Jeffery.

[39] It was put to Ms Harbour that she was shown a document that was already drafted, and she was asked to comment on it, and she rejected that.

[40] Ms Jeffrey said after a discussion with Ms Trevascus she received a draft and after she looked it over and was happy it was an accurate record; she was able to sign it. Ms Jeffery confirmed she understood everything in the statement and understood when she signed it, she was adopting it as her own. Ms Jeffery said they were her words and Ms Trevascus just put them together.

[41] Ms Jeffrey was referred to her paragraph 7 and Ms Harbour’s statement at paragraph 9 as being identical as well as paragraph 6 of her statement and paragraph 8 of Ms Harbour’s statement as being almost identical, and paragraph 8 of her statement and paragraph 10 of Ms Harbour’s statement. It was also put to Ms Jeffrey that the two statements included the same typographical error concerning the name of Mr Waller.

[42] In closing submissions, the Respondent said that where the statements are the same, no weight ought to be given to those parts of the statements. The Respondent said it did not suggest any malafide intention was involved, however there was no credible explanation for why the statements are so similar. I will return to this issue below.

[43] Ms Harbour said that she has been employed by the Respondent as a ‘part time’ personal carer since 26 April 2017. Ms Harbour said since February 2022, she has worked approximately 10 shifts per fortnight for the Respondent. Ms Harbour said over this period, she has only worked ‘early shifts’, which are rostered to commence at 6:30am.

[44] Ms Jeffrey said she has been employed by the Respondent as a ‘part time’ personal carer since 19 November 2019, and since February 2022, she has worked approximately 9 shifts per fortnight for Jeta Gardens. Ms Jeffrey said she generally works eight ‘early shifts’ and one ‘afternoon shift’ per fortnight.

[45] Ms Harbour said she knows this as she is always at work between 5.55am and 6.00am and she sits and watches all the other staff come in, so she knows what time most of them are there. Ms Harbour said that it was her understanding that since February 2022, both the inside testing area and the outside testing area have been continuously monitored by video surveillance.

[46] Ms Harbour said she does not see the Chief Executive Officer, Mr Carter, around much. Ms Harbour said she has never seen Mr Carter address staff directly. Ms Harbour said she had not seen Mr Carter at the facility between 6am and 6.30am in the morning.

[47] Ms Jeffrey said she had never spoken personally to Mr Carter and had not seen him around the centre much. Ms Jeffery said she had seen him four or five times since she has worked at the Respondent. Ms Jeffrey said the afternoon shift is 2.30pm to 10pm and the morning shift is 6.30am to 2.30pm.

[48] Ms Jeffrey was asked if she had seen Mr Carter at work between 6:00am and 6:30am and she said no. Ms Jeffrey was asked if she had seen Mr Carter observe her performing a RAT and she said no.

[49] Ms Harbour said she had spoken to Dr Dwyer (the other witness for the Respondent) on maybe two occasions. Ms Harbour said this was at the smokers table on her break and Dr Dwyer was explaining changes to be made. Ms Harbour was asked if apart from the conversations she had with Dr Dwyer had she seen him around the centre, and she said a few times. Ms Harbour said she had not seen him around when she and other staff were doing their RAT’s, or in the early morning before 6.30am.

[50] Ms Jeffrey said she had not spoken directly to Dr Dwyer. Ms Jeffrey said she had seen Dr Dwyer a few times. Ms Jeffrey said she had not seen Dr Dwyer regularly in the mornings before 6.30am.

[51] Both Ms Harbour and Ms Jeffrey gave evidence in identical terms that said that in early February 2022, the Respondent began directing them and the other staff members as follows (the Testing Protocol):

a. to arrive at least 15 minutes early for each rostered shift;

b. to collect a RAT Test from the testing area;

c. to self-administer the RAT Test;

d. to wait for the result of the RAT Test; and

e. to record the result in the folder provided.

[52] The statements of both Ms Harbour and Ms Jeffrey said that they were told that staff who had tested positive to COVID-19 within the previous 35 days were not required to comply with the Testing Protocol.

[53] Ms Jeffrey was referred to the above evidence. Ms Jeffrey gave evidence that she had tested positive in April to COVID-19 herself, and she said it was at this time that she was told that because she had tested positive to COVID-19 within the last 35 days she would not need to do RATs.

[54] Both Ms Harbour and Ms Jeffrey said that the direction to comply with the Testing Protocol was repeatedly given to them and other staff members verbally by the then Human Resources Manager, Ms Evelyn Clinton. In Ms Harbour’s case this was also by her team leaders, Carl Caprio and Richard Banidas, and in Ms Jeffrey’s case by her team leader Ava Lee, and for both by a Matt Waller who was in charge of infection control.

[55] Ms Harbour gave evidence that Mr Caprio, Mr Banidas and Mr Waller were all still employed by the Respondent as at the time of the hearing. Ms Jeffrey said Ms Ava Lee and Mr Waller also still worked at Jeta Gardens.

[56] Ms Jeffrey agreed that Ms Clinton was no longer working at the facility. It was put to Ms Jeffrey that there was no one at the facility by the name of Mr Waller. Ms Jeffrey said that is what she thought the person’s name was. It was put to Ms Jeffrey there is a Mr Wall and she said that must be who she was referring to. It was put to Ms Jeffrey that Mr Wall does not attend handovers on morning shift, and she appeared to agree.

[57] Ms Harbour claimed that she recalled two occasions between February 2022 and May 2022, when Ms Clinton attended their morning handover meeting to address staff and reiterate that they are required to comply with the Testing Protocol, including by attending work at least 15 minutes prior to the start of their rostered shift.

[58] Ms Harbour claimed on the second of these meetings, which she thought occurred sometime soon after Easter, she recalled Ms Clinton making a statement to the following effect:

“And if you start being late, and you’re not on the floor by half past, then I’m going to start docking your pays”.

[59] Ms Jeffrey said she recalled one meeting in which Ms Clinton and Mr Waller told staff that they must come into work at least 15 minutes prior to the start of their rostered shift to complete a RAT.

[60] Ms Harbour said she received messages from management through the internal referrals system “SARA”, directing her to come in 15 minutes early for each shift to complete a RAT. Ms Harbour said the SARA system was replaced earlier this year with a new system called “ECase”, and she no longer has access to the messages sent to her through SARA.

[61] Ms Jeffrey said she received emails from management and messages through the internal referrals system SARA directing her to complete a RAT prior to every shift.

[62] Ms Harbour claimed on most occasions, but not all, she saw either Ms Clinton or Mr Waller supervising the RAT testing of staff. Ms Jeffrey said on most occasions between February and May, but not all, she saw Ms Clinton supervising the RAT testing of staff.

[63] Both Ms Harbour and Ms Jeffrey said that since early February 2022, they have complied with the Testing Protocol by arriving at the facility at least 15 minutes before the start time of their rostered shift.

[64] Ms Harbour said that over this period, almost all staff on the morning shift in the Opal Building also arrive at the facility between 6am and 6:10am. Ms Harbour said there are occasionally “stragglers” who arrive at the facility around 6:15am or later. Ms Harbour said that it is her understanding that since February 2022, both the inside testing area and the outside testing area have been continuously monitored by video surveillance.

[65] Ms Jeffrey said that from 15 February 2022 until 1 September 2022, almost all other staff on her shift, either morning or afternoon, in the Jade Building have arrived at the facility between 15 and 25 minutes early. Ms Jeffrey said there are often a few “stragglers” who arrive at the facility around 15 minutes early or later.

[66] Ms Jeffrey said that from February 2022 until May 2022, the Respondent had a testing area set up inside the foyer of the Jade Building. Ms Jeffrey agreed that it was somewhere around the middle of May 2022 that the testing area was moved outside the door to enter the building.

[67] Dr Dwyer gave evidence that he is currently working as an independent contractor at the Respondent and he runs his own Company, which is called Frontline Care Solutions Pty Ltd, and has been running this company for approximately 20 years.

[68] Dr Dwyer said Frontline Care Solutions provides consulting and compliance services in relation to clinical governance frameworks and education to aged care and community services providers in Australia. Dr Dwyer holds formal qualifications in nursing, psychology, a Masters in Gerontology and PHD in evidence-based health care specifically clinical leadership.

[69] Dr Dwyer said he is also an Associate Professor at Queensland University School of Nursing and Midwifery Social Work, and has held this position since 2013, and is a fellow of the Australian College of Nursing and a Clinical Fellow of the Joanna Briggs Institute, an international research organisation promoting and supporting evidence-based decisions.

[70] Mr Wesley Carter, who also gave evidence for the Respondent, is the Chief Executive Officer (CEO) of the Respondent and has held the position of CEO since he started employment with the Respondent in July 2020. Mr Carter holds a master’s degree in Health/Health Care Administration/Management and has over 20 years’ experience in hospitals and aged care management in public, private and not-for profit organisations. He is an experienced healthcare CEO and has held the position of CEO at several other facilities.

[71] Mr Carter is a Fellow of the Australian College of Health Service Management (ACHSM), the peak professional body for health managers in Australasia, and has been a Lead Assessor at Australian Council on Healthcare Standards (ACHS) and said ACHS is an independent, not-for profit organisation dedicated to improving quality in health care.

First Covid Outbreak 31 December 2021 to February 2022 and formation of Outbreak Management Team (OMT)

[72] Ms Harbour said in January and February 2022, there was a large COVID-19 outbreak at Jeta Gardens and dozens of staff members and residents were infected. Ms Harbour said in either late January or early February 2022, representatives from the Department of Health became involved in the running of Jeta Gardens, and it was around this time that the Respondent was supplied with Rapid Antigen Tests.

[73] Ms Harbour agreed this outbreak was between around New Year’s Eve 2021 and February 2022. Ms Harbour agreed in excess of 80 residents caught Covid 19 in that time. Ms Harbour understood 16 residents passed away in this outbreak. Ms Harbour agreed upwards of 40% of staff could not work at times during this period because they had COVID-19 or and had to isolate at home. The Applicant agreed arrangements about temperature checking and undertaking RATs were not in place before this first outbreak.

[74] Ms Harbour agreed with the proposition that the Union was not asking on her behalf to have other activities that she undertakes before starting her rostered shift to be counted as time worked and paid, such as doing a temperature check, donning PPE or sanitising her hands.

[75] Ms Jeffrey recalled the first outbreak of COVID-19 but could not recall the specifics of when it started, however recalled residents passing away from COVID-19. Ms Jeffrey agreed that staff were working hard during this period because of the number of staff who could not work because of COVID-19.

[76] Dr Dwyer said that on or around 1 February 2022, he spoke with Mr Carter, the CEO of the Respondent and Mr Carter informed him that the Respondent had been issued with a Notice to Agree by the Commissioner of Aged Care (Notice), and that pursuant to the Notice:

(a) Jeta Gardens had to appoint a nurse advisor/specialist to assist in the management of identified serious risks and to ensure Aged Care Standards were being met; and

(b) Jeta Gardens had until 3 June 2022, to bring their facility into compliance with the Aged Care Standards.

[77] Mr Carter also referred to this Notice to Agree and its requirements in his evidence. Dr Dwyer said that organisations providing Commonwealth subsidised aged care services, like the Respondent, are required to comply with the Aged Care Standards, which are set under the Aged Care Act 1997. Dr Dwyer said that compliance with the Aged Care Standards is monitored by the Aged Care Quality and Safety Commission (ACQSC), who regularly audit and accredited facilities in order that they be able to operate as an aged care facility. He set out the Aged Care Standards in his statement.

[78] Dr Dwyer said in his discussion with Mr Carter on 1 February 2022, Mr Carter asked him if he would accept an appointment to work with Jeta Gardens and rectify their non-compliance issues. Dr Dwyer said he accepted the offer that day.

[79] Dr Dwyer said on 2 February 2022, he commenced work at the Respondent in the position of Specialist Advisor. He said in this position, he became responsible for:

(a) the overarching clinical governance framework including constituting their policies and procedures to be in line with the Aged Care Standards;

(b) assisting in controlling the outbreak of COVID-19 at the residential aged care facility Bethania Queensland (Facility); and

(c) creating a care model which included a multidisciplinary care team tasked with rebuilding the governance of the Facility.

[80] Dr Dwyer said that prior to December 2021, the Respondent had not had to deal with a COVID-19 outbreak at the Facility. Dr Dwyer said he was informed by the Respondent, and he came to the conclusion on or shortly after he commenced work at the Facility on 2 February 2022, that as of December 2021, the Respondent had little to no systems or procedures in place at the Facility to enable an effectively early control and management of an outbreak of COVID-19.

[81] Dr Dwyer said further, that facility staff had not been adequately trained to detect and manage an outbreak of COVID-19. Dr Dwyer said at the time he commenced work at the Facility, it had been in lockdown for 7 weeks due to a very serious and widespread COVID-19 outbreak that commenced in December 2021. Dr Dwyer said over the course of that outbreak of COVID-19 from December 2021 to February 2022, a total of 96 residents and 84 staff members tested positive to COVID-19. Mr Carter also gave the same statistical evidence concerning this COVID outbreak in his evidence.

[82] Dr Dwyer said there were 16 resident fatalities during this time, all directly linked to COVID-19, and the impact of the COVID-19 outbreak at the Facility meant a large portion of Facility Staff were unable to work for a period of time as a direct result of having contracted COVID-19, or due to the fact that they were required to take leave to care for a family member who had contracted COVID-19.

[83] Dr Dwyer said this impact on staff availability had a direct and negative impact on the ability of the Respondent to meet its commitments to the clinical care plans for residents at the Facility, as well as the general wellbeing and experience of those residents.

[84] Dr Dwyer said these were serious public health matters that the Respondent and staff at the Facility were addressing and working with representatives of the Commonwealth Department of Health and Aged Care, Public Health Unit (being part of Queensland Health) and the ACQSC at the time he commenced at the Facility.

[85] Dr Dwyer said whilst working on site he sleeps over on site in a guest room and is on site by the morning shift at 6am.

[86] Mr Carter said on 31 December 2021, and in response to the presence of COVID-19, the Facility was locked down. Mr Carter said to lock down the Facility means that the Respondent had to introduce very strict rules effectively preventing family members and other guests from entering the Facility, and entrance to the Facility, and movement between areas in the Facility was strictly monitored for all staff and residents.

[87] Mr Carter said this first lock down continued to 19 February 2022. Mr Carter said during this lockdown, the Respondent formed its first Outbreak Management Team (OMT), to

work closely with the Queensland Department of Health, Public Health Unit, and representatives of the ACQSC to manage the response to the outbreak of COVID-19 at the Facility. Mr Carter said he is a member of the OMT.

[88] Dr Dwyer said that before he commenced at the Facility, there was no COVID-19 testing system in place at the Facility. Dr Dwyer said on or around 10 February 2022, the then Clinical Manager at the Facility, who is no longer employed at the Respondent, in conjunction with the Public Health Unit, advised the Respondent to adopt a practice of staff completing a RAT prior to entry into the Facility.

[89] Dr Dwyer said at this time Ms Qing Ling, Nurse Advisor appointed by Mr Carter from an agency called Health Gen, was primarily responsible for the COVID 19 outbreak management process at the Facility. Dr Dwyer said as he was appointed by Mr Carter to manage and control clinical governance at the Facility, he was working closely with Ms Ling.

[90] Dr Dwyer said Ms Ling was responsible for reporting daily to the Government representatives on the outbreak management process at the Facility and was in constant discussions with the Public Health Unit regarding the same. Dr Dwyer said Ms Ling and himself often collaborated on ideas and advice to provide to the Facility.

[91] Mr Carter said on Wednesday, 2 February 2022, he spoke with Health Generation and engaged them for a 4-month period. He said Health Generation appointed a Nurse Advisor to the Respondent and also provided up to 5 additional staff as required.

Commencement of RAT Testing and correspondence of 15 February, 19 February and 4 March 2022

[92] Both Ms Harbour and Ms Jeffrey agreed that on 15 February 2022, they received a written memo by email from the Respondent, which included the following:

“COVID screening prior to entering the facility remains in place. This means, if you have a temperature at or above 37.5C, have symptoms of COVID e.g. sore throat, cough, runny nose, etc. then you are not to attend work and must report your symptoms to Cheryl and myself immediately. Staff that have not had COVID in the past 35 days should RAT test prior to entry to the facility each day they come to work.”

[93] Dr Dwyer said on or around 10 February 2022, Ms Ling and himself made a joint recommendation to Mr Carter that Facility staff should RAT test and produce a negative result prior to entering the Facility to work. Dr Dwyer said he is aware that a short time later, the Facility introduced a system for staff to be able to complete a RAT when they arrived at the Facility.

[94] Mr Carter said that some time in around early February, a verbal recommendation was made to him as an action from the OMT that the Facility should introduce RAT testing for staff working at the Facility.

[95] Mr Carter said in response, he then asked the Nurse Advisor at the Facility to work on a protocol for introducing a RAT regime for staff working at the Facility. He said the outcome of this was an email sent to all staff at the Facility on 15 February 2022. Mr Carter said this email was distributed to all Facility staff via “SARA,” an aged care management software program that was in place at the Facility at that time.

[96] Mr Carter said on around 4 April 2022 SARA was replaced with a new software program, and or around the start of July 2022 SARA was decommissioned at the Facility and unfortunately it is proving difficult for the Respondent to recover documents and records from the decommissioned SARA program, although they have managed to recover the documents, he refers to in the statement.

[97] Mr Carter agreed that he was aware that the two witnesses for ANMF recalled being given messages through the SARA Program directing them to perform a RAT test before starting work. Mr Carter was asked why he could find two messages from SARA attached to his statement but not others. Mr Carter said there were printed copies at the time. Mr Carter said there were no other messages in SARA that had not been provided that he was aware of. Mr Carter’s evidence was to the effect that since the decommissioning of SARA it was his understanding the Information Technology person could not retrieve other material.

[98] Mr Carter said the intention of the 15 February 2022 email was to encourage all staff, who had not contracted COVID-19 in the previous 35 days, to undertake a RAT before attending for work. He said the RAT kits were available for staff to take at the Facility, and the words used in the email was that staff “should” do this.

[99] Mr Carter said that by around 15 February 2022, he was aware the Facility was preparing to come out of lockdown, and when it did it would remove some of the rules preventing visitors from entering the Facility, and for staff, residents and visitors from moving around within the

Facility. Mr Carter said the lockdown finished on 19 February 2022.

[100] Mr Carter said that as at February 2022, he was not asked to approve a RAT protocol that required a negative RAT as a condition for staff entry to the Facility, and he did not approve a protocol that mandated a negative RAT for staff entry. Mr Carter said he approved the 15 February email, as “our” thinking at that time was to encourage but not force all staff to do a RAT. Mr Carter clarified that he was referring to the thinking of Nurse Manager and the OMT to which he was a member.

[101] Mr Carter said that he has not been able to check and verify this with Ms Clinton, the former HR Manager at the Facility as Ms Clinton ceased employment at the Facility on 23 July 2022, for reasons not related to this matter, and he is informed Ms Clinton is not willing to participate in this matter. Mr Carter said he called Ms Clinton himself and she did not return his call. Mr Carter was asked if he was aware of any reason as to why she would not wish to participate, and he said he was not. He clarified that he did not leave a voice mail message when he rang Ms Clinton and had not made other attempts to contact her. Mr Carter said he was informed others attempted to contact her and he was told she was not willing to be forthcoming.

[102] Mr Carter said he was aware at this time that all Facility staff had received 2 doses of a COVID-19 vaccine, or had a valid medical contraindication, and in this situation his thinking at that time was the 15 February 2022 email was reasonable and appropriate.

[103] Mr Carter said that as a part of the Facility preparing to come out of lockdown, from around early February an area was set up inside and near the entrance to the Facility where staff could enter and undertake a RAT test. Mr Carter said this area was not under direct supervision, and there was no management person assigned to be in that location to supervise or monitor staff when they did a RAT. Mr Carter said there was no requirement for staff to attend this area at a particular time before the start of their shift. Mr Carter clarified in oral evidence he was referring to both the Opal and Jade Buildings.

[104] It was put to Mr Carter that the evidence of Ms Harbour and Ms Jeffrey was that almost every time they came in to do a RAT test Ms Clinton was supervising them. Mr Carter said that there was no direction for supervision but there had been a request for someone to support staff in how to administer the RAT test. Mr Carter said there was no directive for supervision. It was put to Mr Carter that supervision could occur without it being directed by the CEO and he said it could be possible.

[105] Mr Carter was asked if there were security cameras that point to the area set up for testing. Mr Carter said it is likely the area would be covered by security cameras. Mr Carter said he had not looked at surveillance footage.

[106] Mr Carter said that he is aware that when this RAT protocol first came in during February 2022, there was a member of the management team in the testing area when morning shift were arriving, so from around 6.00am - 6.30am, to offer training in case there were any team members who wanted some assistance to explain how to conduct a RAT. Mr Carter said this was reported to him at the time. Mr Carter said it is his understanding that this was an ad-hoc practice and did not continue as staff became familiar with the RAT process and the area where they could test. Mr Carter said he is generally at work between 7.30am and 8.30am. He agreed RAT tests for morning shifts are done before 6.30am.

[107] Mr Carter said it is his understanding that at the time the afternoon and night shift staff were arriving, and on weekends there was no arrangement, ad-hoc or otherwise, for a manager to be present in the testing area when staff arrived to do their RAT. Mr Carter said there are three periods of time throughout the day when RAT tests are required to be done and Ms Clinton could not supervise all those times.

[108] Mr Carter said he gave no instruction (at this time) to Facility staff or management that they had to attend the Facility early and show a negative RAT as a condition of starting work on the day, and as far as he is aware, the email of 15 February 2022, was the only written information to staff about the RAT protocol at that time, and it was to encourage RATs before the start of work and that is all.

[109] It was put to Mr Carter that he was not the only person who gives directions to staff, and there are Team Leaders and Facility Managers who do that. Mr Carter agreed depending on what the issue was.

[110] Mr Carter said in the period from 1 February and until around 4 March 2022, he gave no instruction to the management team at the Facility that they were to stand in the testing area or supervise and monitor staff on arrival to conduct an RAT, and he is not aware of any member of the management team who gave that instruction to other managers, or who took that duty upon themselves. Mr Carter said as the CEO, he expected that he would have been aware of that practice if it was in place as he was heavily involved in managing the Facility’s OMP at that time.

[111] Mr Carter said based on his regular attendance at the Facility on most weekdays, he is aware that most or all staff came in early or on time and did a RAT at the testing area.

[112] Mr Carter agreed in relation to his evidence concerning management staff being in the testing area around this time that this was based on what staff had told him. He clarified that it was also from a lack of any direction to do so from him. He also said the discussions at the OMT meetings never included staff being supervised to perform RATs.

[113] Mr Carter was asked if it was normally part of his role to give directions to nurses and his evidence was to the effect that it depended on the circumstances and the OMT was putting in place the protocols across the organisation. Mr Carter said there would be decisions he makes that impact all staff and they work through the management structure to staff.

[114] Dr Dwyer said from his observations of staff at the Facility while he was present, staff understood it was their duty of care to the residents and each other to ensure they only came to work if they were free from COVID-19. He said the majority of staff on each day were from his observation willing to arrive to work before their start time in order to do the RAT test and then be ready to commence work at their nominated start time. Dr Dwyer said however, he also observed that some staff did not arrive to work early, and instead chose to undertake the RAT once they arrived at work at their rostered start time. Dr Dwyer said if an employee chose to do this, that staff member was not warned or disciplined in any way, and their pay was not reduced to take into account the time they spent waiting for the RAT result.

[115] Dr Dwyer was asked where he spent most of his time when at the facility. He said all over the facility depending what tasks need to be done. He said he stayed at the facility four nights a week from the start of his contract. Dr Dwyer said he commenced working before morning handover to be present at 6.30am. Dr Dwyer said he works at the Opal and Jade Buildings. Dr Dwyer was asked why two nurses who had given evidence did not recall seeing him at that time. Dr Dwyer said he cannot account for who said they saw him and didn’t but his mobility around the facility was also evident. Dr Dwyer accepted that it was his opinion that staff understood their duty of care however he said it was a well-informed opinion.

[116] Dr Dwyer was asked about his statement that staff were “...willing to arrive to work before their start time in order to do the RAT test...” and was asked whether he meant volunteering. He said they were willing to come to work a few minutes early, and he observed that as a normal thing happening around him and the staff culture was stable, and everyone was willing to put the effort in to protect the elderly and it confirmed the culture was in the right space.

[117] It was put to Dr Dwyer that the two witnesses for the Applicant were directed to come in and were required to come in early from 15 February. Dr Dwyer said he did not witness any conversation like that.

[118] Dr Dwyer was referred to the words in his statement where he said he “...observed that some staff did not arrive to work early, and instead chose to undertake the RAT once they arrived at work at their rostered start time.” Dr Dwyer was asked how he could tell if staff were choosing to undertake the RAT or were being directed. Dr Dwyer said the observation was that some staff would come early, some would come dead on shift, and some would arrive late and that was something you observe when you work with staff.

[119] Dr Dwyer’s evidence was to the effect that he was not aware of and did not witness staff being directed to start 15 minutes before shift.

[120] Dr Dwyer was asked about his evidence that if a staff member did not come in before work to do a RAT that staff member was not warned or disciplined in any way, and their pay was not reduced. It was put to Dr Dwyer that he could not know from his knowledge that this never happened. Dr Dwyer said part of his role was to handle, stream and vet all complaints and no such complaints in relation to this were ever raised until recent weeks. He said he was not aware of it. He said he would have heard of it.

[121] Dr Dwyer said he was not aware of and did not participate in an email or other written communications about the RAT system at the Facility.

[122] Ms Harbour agreed that the email of 15 February was the first time she received a written instruction about COVID-19 screening. Ms Jeffrey was not sure if this was correct, however she did not produce any evidence that would say otherwise.

[123] Ms Harbour said that from February 2022 until May 2022, the Respondent had a testing area set up in the lobby area of the Opal Building, just outside of the Pine Wing.

[124] Ms Harbour, in reference to the email to staff on 15 February 2022, was referred to the particular words in the email as follows:

“COVID screening prior to entering the facility remains in place. This means, if you have a temperature at or above 37.5C, have symptoms of COVID e.g sore throat, cough runny nose etc. then you are not to attend work and must report your symptoms to Cheryl and myself immediately…”

[125] It was put to Ms Harbour that this part of the email is talking about things other than RAT testing such as if you have symptoms then you don’t come to work, that you wash your hands and wear PPE. Ms Harbour maintained it also referred to RATs. It was put to Ms Harbour that this sentence was talking about the time prior to entering the facility. Ms Harbour maintained it was referring to RAT testing. The same proposition was put to Ms Jeffrey. Ms Jeffrey also maintained that you had to do a RAT.

[126] Ms Harbour was also referred to the last sentence that says, “Staff that have not had COVID in the past 35 days should RAT test prior to entry to the facility each day they come to work.” It was put to Ms Harbour that a reasonable reading of this sentence would be that it is encouraging you or recommending that you do a RAT test before entering the facility. Ms Harbour said if that is the wording you see yes, but that is not what they were told. Ms Harbour accepted that the testing area at that time was inside the facility, not outside the facility. The same proposition was put to Ms Jeffrey and she did not agree. Ms Jeffrey maintained they were told they had to RAT test.

[127] It was suggested to Ms Harbour that the test area inside was set up as a convenience in case any staff member didn’t get to test before work they could test after they got to work. Ms Jeffrey maintained that the reason why they had to go inside to do the test was that was where it was set up.

[128] Ms Harbour agreed that the email of 15 February did not contain any request or direction for employees to arrive at work 15 minutes before their start time.

[129] Mr Carter said that on 19 February 2022, the Facility issued an email to all staff and residents to confirm that the Facility was no longer in an outbreak phase and the lockdown had ended. Mr Carter said he did not regard this email as changing the RAT protocol, more to update staff on the recommendations for testing from the Queensland Public Health Unit.

[130] Mr Harbour was referred to this email and she confirmed she recalled seeing it at the time. The email was as follows:

“Dear Resident, Families, and Staff,

Just a quick note following my earlier message to confirm that we now have formal notification from the Public Health Unit that Jeta Gardens is no longer in Outbreak phase.

Public Health are happy to confirm that all outbreak restrictions can now be lifted from Jeta Gardens as of today 19 February 2022 and that all restrictions are lifted immediately.

Public heath recommend that Staff / Families/ Visitors / Contractors have a RAT test every 72 hours at entry and that there is daily heightened vigilance for symptoms among residents, staff, families, visitors and visitors.

We would like to acknowledge the good work done by the facility and all the other agencies involved in this outbreak.

Thank you very much.

This is very good news for all parties involved, including the various inter-agency departments that have met daily, 7 days a week, since the end of December (8 weeks).

The support from all parties, including yourselves as the “Jeta Gardens Community” has been heart warming and a testament to the fact that with patience, hard work, open communication, and strong partnership between government agencies, approved providers, and clients/stake holders, there is always light at the end of the tunnel.

I remain in your service until 3 June with my Nurse Advisor team (and external Consultant Gerontologist Dr Drew Dwyer for the next 12 months) as we resume Jeta Gardens full operations with a new organisational structure and clinical governance framework.

Best regards,

Qing Ling

Nurse Advisor (Health Generation)

Jeta Gardens

………………….”

[131] Ms Harbour agreed this email was the next time she saw anything in writing from the Respondent concerning RAT testing and she agreed it included a recommendation that staff do a RAT every three days. Ms Harbour agreed this document did not include a recommendation that staff needed to attend 15 minutes before the start of their shift everyday to do a RAT.

[132] Ms Jeffrey said she assumed she would have received the email of 19 February and said she thought she remembered it. Ms Jeffrey was referred to the section of the email recommending a RAT be taken every 72 hours and she said there was never a time when they had to RAT three days apart and they had to RAT every shift. It was put to Ms Jeffrey that a reasonable reading of the email was that it was a recommendation staff should do a RAT once every three days on entry to work. Ms Jeffrey evidence was to the effect that is what the email said. It was clear Ms Jeffrey did not accept that is what happened. Ms Jeffrey accepted that the email itself was not a direction to have a RAT every day.

4 March 2022 8am and 4:50pm emails

[133] Ms Harbour was referred to an email dated 4 March 2022 sent at 8am in the morning with the subject heading “COVID Affected Staff – Return to Work” from Ms Ling who was the nurse advisor to all staff at the time. Ms Harbour said she would have received the email however she did not recall receiving it.

[134] Ms Harbour was referred to the email talking about close contacts and the circumstances workers who have been close contacts can work including RAT testing on the first day and every second day thereafter. Ms Harbour acknowledged the email said this, and also acknowledged the different instructions for COVID positive workers, and also that the email provided information about high risk and low risk exposures and the different RAT testing arrangements for these workers. Ms Harbour agreed that receiving this document was the next time she received any written information from the Respondent about RAT testing.

[135] Ms Harbour agreed that the document did not include a direction that close contacts or COVID positive workers had to attend 15 minutes before work to do RAT testing on the first day and every second day thereafter.

[136] Ms Jeffrey said she thought she had seen the 4 March document set out above before. It was put to Ms Jeffery that the document from Ms Ling referred to who close contacts were and what a staff member had to do if they were a close contact. It also discussed arrangements for a COVID positive worker.

[137] Ms Harbour was then referred to a document which was an email dated 4 March 2022 sent at 4.50pm which was as follows:

“Hi All,

Please see attached updated visitor protocol with minor changes.

Please be advised that RAT is now daily for ALL ENTRANTS (VISITOR/STAFF/

CONTRACTOR). RAT not required for persons under 16 years of age. This

increase in surveillance is related to a recent false positive in Jeta this week. Just

confirming that we do NOT have any positive cases in either resident OR staff at

this present time. We are NOT in outbreak.

Kind regards,

Jeta Gardens

Jeta Gardens Management (Qld) Pty Ltd”

[138] Ms Harbour said she did recall receiving this email. Ms Harbour agreed that this was the first time that a written instruction had been provided to do a daily RAT. Ms Harbour accepted that the email did not include an instruction to attend work 15 minutes early to do a RAT.

[139] Ms Jeffrey said she did not recall seeing this email before. Ms Jeffrey appeared to accept that the email would have been sent to all staff including herself. It was put to Ms Jeffrey that a reasonable reading of the email was that doing a RAT is now to be done daily by all staff on entry.

[140] Mr Carter said that on Friday, 4 March 2022, the OMT authorised an email to issue to all staff via the SARA system to update the protocol for any staff or visitors entering the Facility. Mr Carter said the OMT resolved to update the protocol at this time as the Facility had been advised of a false positive COVID-19 test result earlier in that week.

[141] Mr Carter said the update to the protocol was attached to the email in a one page “Visitors Protocol”, outlining all steps that staff and visitors had to complete on arrival at the Facility, and this included taking a RAT. Mr Carter provided a copy of the email and the attached protocol with his statement.

[142] Mr Carter said that this was the first time the Facility advised staff that they had to do a RAT when they arrived at the Facility, as part of a series of steps set out in the Visitor Protocol. Mr Carter said however, there was no direction or expectation from the Respondent that staff had to arrive 15 minutes before their shift start time, and he had no expectation that staff had to arrive early and before their shift start time to do these steps, and he did not instruct anyone at the Facility to make staff do so.

[143] Mr Carter said that also on 4 March 2022, the Facility published a memo to all staff to update on the return to work and testing arrangements for close contacts of a person who had COVID-19 that he provided with his statement.

[144] Mr Carter said the memo was issued to all staff on this day in addition to the email about visitor protocol because the Facility was having to manage site entry by staff (and other visitors) in different circumstances. Mr Carter said a staff member who had COVID-19, or who was a close contact, was directed to undertake a RAT in accordance with the memo and in line with the Public Health directions in place at that time. He said other staff, who were not close contacts, were to comply with the Visitor Protocol.

[145] Mr Carter was asked why the subject line of the email sent to staff at 4:50pm was “Updated Protocol for Visitors”. Mr Carter said the attached updated protocol subject is Covid affected staff returning to work.

Further Outbreak in late March 2022 and lockdown

[146] Mr Carter said that on 31 March 2022 and in the days following, 15 staff tested positive for COVID-19 and this caused the Facility to enter into a lockdown period that continued to 2 May 2022. During this period he said the Visitor Protocol remained in place.

Outbreak in May 2022

[147] Mr Carter said that unfortunately, by 12 May 2022, the Respondent had confirmation that a resident had contracted COVID-19, and from that date, the Facility went into another lockdown, and this continued until 30 May 2022.

[148] Mr Carter said that as soon as this lockdown commenced, the OMT convened to review the arrangements in place at the Facility, and on around the same day, the Nurse Advisor advised Mr Carter in a meeting that the Facility should mandate staff to undertake a RAT and produce a negative result prior to entering the Facility for work. Mr Carter said that he accepted this recommendation and approved a new RAT protocol to be written and published to staff to explain this.

[149] Mr Carter said for this reason, on 13 May 2022, an email was sent to all Facility staff to explain the new RAT protocol. Mr Carter said this now required all staff to attend designated testing areas prior to the rostered start of their shift to undertake a RAT and produce a negative result prior to entering and commencing work at the Facility.

[150] Mr Carter said this revised RAT protocol was in place from 13 May 2022 and until 31 August 2022, and during this period, there was no direction to dock pay for any staff member to who arrived within 15 minutes of their rostered start time to undertake the RAT test, and he said he is not aware of any staff member who had their pay docked for this reason. Mr Carter said his understanding and observation at the Facility is that where staff arrived around 15 minutes before the start time of work, they would complete the RAT and on showing a negative test result, would enter the Facility and complete their shift and be paid for that shift worked.

[151] Ms Harbour and Ms Jeffrey both said that in or around May 2022, the Respondent moved the testing area from inside the lobby to just outside the doors to the lobby, Ms Jeffrey saying that is where it is now.

[152] Ms Jeffrey was referred to her timesheet for the fortnight started on Friday 22 April ending on 2 May and she agreed that it recorded that she had tested positive for COVID-19 and had to isolate for seven days. Ms Jeffrey said that after she tested positive, she didn’t have to RAT test for a particular period of time.

[153] The 13 May 2022 email stated as follows:

“RAT testing MUST be undertaken by all staff before your shift commences regardless of what department / area you work in

You must wait 15 minutes in the testing area – you are not to leave for any reason because if your test is positive then you have transmitted COVID into the facility to residents or other staff

The first line appearing on the COVID test is a control line – this control line indicates that the test is in working order ONLY and NOT an indication that your test is clear

It takes 15 minutes for a result as this is how the tests are designed

Once the 15 minutes is up then, write your result in the folder – DO NOT forget to indicate your test result

PLEASE ensure hand hygiene and dispose of all COVID test kit material appropriately in the bins provided

Failure to follow the correct protocols will result in disciplinary action

ALL RAT tests must be conducted on site 15 + minutes prior to the commencement of your shift – this is a requirement of your work conditions – you are not paid for this time, however correct testing and hand hygiene procedures are to ensure your safety and the safety of residents and staff alike

DO NOT REMOVE TEST KITS

CCTV monitoring in place”

[154] Ms Harbour said that on 13 May 2022, she received this email from the Respondent. Ms Harbour was referred to a timesheet for the Fortnight ending 16 May 2022. It was put to Ms Harbour that she worked both Thursday 12 and Friday 13 May 2022 and her roster shift started at 6.30am and finished at 2.30pm and she signed in the box to indicate that, and she agreed.

[155] Ms Harbour was asked if she recalled an outbreak that commenced on or about that Friday 12 May that went to 30 May. Ms Harbour said she thought the May outbreak was in the other building and not the building where she worked.

[156] It was put to Ms Harbour that the new outbreak in May caused a change in the RAT protocol and the email attached to Ms Harbour’s statement dated 13 May set out the RAT protocol. Ms Harbour did not accept this.

[157] It was put to Ms Harbour that this was the first time there was an instruction that employees must undertake a RAT test before the commencement of their shift and Ms Harbour agreed with this.

[158] It was put to Ms Harbour that the first time she was given a direction to follow the RAT testing protocol she described in her statement at paragraph 8 was when she received this email of 13 May and not before. Ms Harbour rejected that. Ms Harbour agreed with the proposition that she had not received any instruction in writing prior to 13 May to do those things.

[159] It was put to Ms Harbour that what she claimed at paragraph 8 of her statement was inconsistent with what was said in the 15 February email. Ms Harbour agreed it was not consistent with the written email. It was also put to Ms Harbour that what she said in her paragraph 8 was inconsistent with the information she was given in the 19 February email concerning RAT testing every 72 hours. She agreed they were not consistent. It was put to Ms Harbour that her paragraph 8 was also not consistent with what she was given in writing on 4 March and she agreed.

[160] Ms Jeffrey agreed that she worked on Friday 13 May from 6.30am to 2.30pm. Ms Jeffrey was asked if she recalled if an outbreak of Covid occurred at the facility at this time and she said she did not recall the specific outbreak. Ms Jeffrey said she was sure she would have been told.

[161] Ms Jeffrey was asked about the email sent on 13 May. Ms Jeffrey said she probably saw the email. It was put to Ms Jeffrey this was the first time she had received a direction in writing to arrive 15 minutes before her rostered shift started to do a RAT. Ms Jeffrey said she was not fully confident of that because there could have been messages in the old “SARA” system. It was put to Ms Jeffrey she had given no evidence in her statement about any such message. Ms Jeffrey said maybe she didn’t know she needed to. Ms Jeffrey did not agree that this was the first time as there may have been an earlier written date, but she was unsure when.

[162] It was put to Ms Jeffrey that the testing protocol she described at paragraph 6 of her statement is exactly what the 13 May email says and is exactly the protocol established by the 13 May email. Ms Jeffrey said they had been RAT testing for months before May.

[163] Mr Carter stated that there had been no direction to dock the pay of any staff member who had not attended early enough to complete the test prior to their shift commencing. Further, he stated that staff had not been paid for this time as they had not recorded the time on their time and attendance records. He concluded that this would mean there would be no records to indicate which staff arrived 15 minutes early and which staff did not.

[164] Dr Dwyer said during his evidence that he was unaware of the 13 May directive and asked who gave it because it would have come across the minutes of the governance meeting. Dr Dwyer said he had not seen the email. Dr Dwyer later said he understood the rationale for it would have been from the Outbreak Management Team.

[165] Mr Carter said if a staff member arrived within 15 minutes of their start time, they would complete the RAT in the same way before commencing work, and as far as he is aware, a staff member who did so was still paid for the full shift and he has not received any report of staff who have claimed to be docked pay for this reason.

[166] Mr Carter said the statement of Ms Jeffery is the first occasion where he has heard the claim (of pay being docked), and if this has happened then pay for the rostered hours of work should not have been docked. Mr Carter said the Respondent has not paid a staff member for their time in attending a test area outside the Facility when they have arrived to undertake a RAT before their rostered shift start time.

[167] Mr Carter said because this activity has not been recorded by any staff (that he is aware of) on their time and attendance records, the Facility has no records that will allow it to check which staff on which days have arrived at least 15 minutes before their shift start time, and which staff arrived within this time or at their rostered start time to do the RAT.

[168] Mr Carter said the RAT protocol also provided that if a staff member started to experience COVID-19 symptoms while on duty, they were to report those symptoms, re-test with a RAT and then arrange to leave the Facility as soon as possible. Mr Carter said he is aware this did happen on occasions.

[169] Mr Carter said that staff members who self-reported in this way were paid their ordinary hours for their rostered shift, and Staff would then need to have a PCR test and show they were negative for COVID-19 before they could resume work at the Facility. Mr Carter said the emails that he referred to and annexed to his statement are, so far as he can recall, the only written communications to staff at the Facility about the protocols for entry to the Facility in the period 15 February 2022 to 31 August 2022.

[170] It was put to Mr Carter that part of the direction on 13 May was that employees had to write their RAT result in a folder and therefore the Respondent would have the folders and be able to see every test done by an employee since the start of the year. Mr Carter said he thought this was possibly correct. Mr Carter said the only thing that could be drawn from that is that every staff member who has started work has conducted a RAT test, not what time they started.

Respondent receives accreditation for three more years

[171] Dr Dwyer said on or around 21 May 2022, the ACQSC published its accreditation decision, to re-accredit the Facility to 3 July 2025. He corrected an error in his statement which said the date was 3 July 2022.

1 September 2022

[172] Mr Carter said that on Thursday, 1 September 2022, the Facility introduced a revised RAT protocol, and from this date, the Facility has continued to make RAT kits available for staff to take home with them. Mr Carter said that Staff are able to take a RAT kit and then test at home or another place of their choosing, at any time on a day where they are rostered for work, and otherwise as often as they like.

[173] Mr Carter said that when a staff member attends the Facility at the time they are rostered for work, they hand their RAT kit to their manager, who records that and the negative result, and the RAT kit is then taken and disposed of according to the Facility’s clinical waste practice.

[174] It was put to Ms Harbour that from 1 September 2022 the RAT testing protocol has changed and since that time employees can take the RAT test home and self-administer the test before the employees rostered start and she agreed. It was also put to Ms Jeffrey that the Protocol changed on 1 September and Ms Jeffrey’s evidence was to the effect that she was sick at the time.

Alleged docking of pay

[175] Ms Jeffrey said on one occasion she arrived at work at approximately 6:25am, which is 5 minutes before her rostered start time. Ms Jeffery said she completed the Testing Protocol and then signed it. Ms Jeffrey said she noticed that she was being paid for 7.25 hours instead of 7.5 hours for that shift, even though she did not leave early. Ms Jeffrey said she believed that she was docked 15 minutes pay because she was only 5 minutes early to work, not 15 minutes early to work.

[176] Mr Carter said that from 13 May 2022 and until 31 August 2022 when the protocol was in place, there was no direction to dock pay for any staff member who arrived within 15 minutes of their rostered start time to undertake the RAT test, and he was not aware of any staff member who had their pay docked for this reason. Mr Carter claimed staff were paid for their shift whether they arrived 15 minutes before their shift or not.

[177] Mr Carter said the statement of Ms Jeffery is the first occasion where he has heard this

claim, and no one should be docked. Mr Carter said the Respondent has not paid a staff member for their time in attending a test area outside the Facility when they have arrived to undertake a RAT before their rostered shift start time.

[178] Ms Harbour claimed that she recalled sometime soon after Easter, Ms Clinton made a statement to the effect: “And if you start being late, and you’re not on the floor by half past, then I’m going to start docking you pays”.

[179] It was put to Ms Harbour that no one has had their pay docked if they arrived any later than 15 minutes before there rostered start time. Ms Harbour did not agree but accepted that it did not happen to her and accepted that she did not give any evidence about it happening to anyone else.

[180] Mr Carter was asked if he was sure that Ms Clinton did not give a direction to payroll to dock pay and he said he was because it would not have been within her delegated authority to do that. He said Ms Clinton was a contractor to the organisation. Mr Carter said to the best of his knowledge no one else would have given this direction to payroll.

[181] Mr Carter said there has never been a request through Human Resources for any alleged docked pay not to be deducted. Mr Carter provided with his evidence a copy of the time and attendance sheets for Ms Amanda Day, Ms Nicola Jeffery and Ms Jane Marie Harbour covering the period 8 February 2022 until 16 May 2022. Mr Carter said on reviewing those timesheets and he could see no day where Ms Jeffery was docked 15 minutes pay for being 5 minutes early for work.

[182] Mr Carter said in his oral evidence that docking pay was not a practice at the Respondent, and he didn’t believe such a direction was given.

SUBMISSIONS

[183] The Respondent submitted that prior to 15 February 2022 there was no practice or protocol for staff to take a RAT prior to starting work. The Respondent submitted the evidence is that it implemented an Outbreak Management Plan (OMP) in response to the presence of COVID 19 in the facility, and the OMP included, in part, a protocol for staff to take a RAT that changed over time.

[184] The Respondent submitted that if the Commission did not accept its primary submission and were to find that the employees were working when they took a RAT before the scheduled start time of their shift, then the Commission must consider each of the separate periods identified.

[185] The Respondent submitted that in doing so that an employee ought not be entitled to claim any pay for taking a RAT at a time when they were subject to a health direction to test such as during an outbreak of COVID-19, or if they were a close contact of a person with COVID-19, or if they were returning to work after contracting COVID-19 or isolating due to COVID-19 being present in their workplace. Further, an employee should not be entitled to claim any pay for a day when they were on leave.

15 February – 12 May 2022

[186] The ANMF case for the period 15 February 2022 to 12 May 2022 rests on a claim that the two witnesses were subject to a verbal direction to do so by Ms Clinton during this time, and also by Mr Wall in charge of Infection Control and their respective Team Leaders.

[187] The Respondent submits that from 15 February – 3 March 2022, the Respondent:

(a) Informed staff in writing they “should” Test each work day;

(b) Made Test kits available in the Facility, had an ad-hoc arrangement for a manager to be available in case an employee needed to be shown how to take a RAT, and provided an area inside the facility where staff could take a RAT;

(c) Did not direct staff to complete a RAT before the start of their rostered shift each work day;

(d) Did not direct staff to attend the facility at least 15 minutes before their rostered start time for the purpose of taking a RAT each working day; and

(e) Did not dock the pay of any staff member who arrived at work less than 15 minutes before their rostered shift start time.

[188] The Respondent submitted that with respect to the period 15 February – 3 March 2022, the employees were encouraged but not directed to take a RAT, and there was no requirement for the RAT to be taken at a specific time, such as before the rostered start of work on a day, and there was no docking of pay if the employee did not take a RAT, or did not complete it before the start of their rostered shift.

[189] The Respondent submits from 4 March to 12 May, the Respondent;

(a) Directed staff to perform a RAT at the start of each day or shift at the facility;

(b) Did not direct staff to attend the facility at least 15 minutes before their rostered start time for the purpose of taking a RAT;

(c) Did not dock the pay of any staff member who arrived at work less than 15 minutes before their rostered shift start time.

[190] The Respondent submitted with respect to the period 4 March to 12 May 2022, the Respondent directed employees to take a RAT, but gave no direction for any employees to attend the facility at a specific time (i.e at least 15 minutes before the rostered start of work on a day). Further, the Respondent did not have a policy or practice of docking pay if the employee did not complete a RAT before the start of their rostered shift.

[191] The ANMF submits that Mr Carter and Mr Dwyer do not claim to know of every direction that was issued to staff regarding the Testing Protocol (including verbally and in writing). Their evidence is based on what was reported to them, what they approved and what they observed.

[192] The ANMF submits that the direction for staff to comply with the Testing Protocol outside of their rostered shift from 15 February 2022 until 1 September 2022 may not have been given to staff directly by the CEO, but the evidence shows that staff were directed by more junior levels of management.

Jones v Dunkel Inference

[193] The ANMF submits that the Respondent has not provided evidence from Ms Clinton, Mr Caprio, Mr Banidas, Mr Waller or Ms Lee, most of whom are current employees of the Respondent, and all of whom would have been capable of substantiating the statements of Ms Harbour and Ms Jeffery.

[194] The ANMF submits that the Respondent has also failed to provide copies of staff notices about the Testing Protocol sent through SARA, except for the two that Mr Carter relies on in his statement.

[195] The ANMF submits that a Jones v Dunkel inference should be drawn against the Respondent for failing to call evidence from Ms Clinton, Mr Caprio, Mr Banidas, Mr Waller, and Ms Lee. The ANMF submitted that the same applies in relation to alleged missing staff messages from SARA.

[196] The Respondent submits a Jones v Dunkel inference is not available when the witness is unavailable and therefore there can be no such inference in relation to Ms Clinton. I am prepared to accept on the basis of the evidence that Ms Clinton was not available and so draw no Jones v Dunkel inference in relation to Ms Clinton.

[197] In relation to Mr Wall, both the statements of Ms Harbour and Ms Jeffrey referred to a Mr Waller not a Mr Wall. When it was clarified that the witnesses were intending to refer to Mr Wall, Ms Jeffrey gave evidence that he does not attend hand over meetings. The Respondent submitted that there is no evidence that the Team Leaders were members of the management team, and that was never put to Mr Carter or Mr Dwyer.

[198] The Respondent submits that the testimony of Ms Harbour and Ms Jeffrey, in the form it was given, as to what they say they were told by their Team Leaders cannot be accepted as a direction by their employer. The evidence of Mr Carter was if there was such a direction, he would have known about it and as he didn’t know about it there was no such direction.

[199] I have concluded not to draw a Jones v Dunkel inference against the Respondent, on the basis that the Respondent did not call Mr Wall or the Team Leaders because it would not have assisted the Respondent’s case. Whilst in all likelihood these persons, if called to give evidence could have assisted in resolution of the dispute, I am inclined more to the view that the Respondent did not call Mr Wall or the Team Leaders on the basis that it believed it did not need to in order to make its case, and not because they would not have assisted the Respondent’s case.

Similar Statements Issue

[200] The Respondent submitted that the fact of the two witnesses for the ANMF having filed statements so similar, in some parts identical, is supportive of a conclusion that they were simply confused about the date they say they were directed to undertake RAT’s. The Respondent submitted that the best evidence rule would support a conclusion that the contemporaneous records of what was actually directed by the Respondent is the most reliable evidence, and it was an unfolding situation over a period of seven months and the documents are the best guide to what occurred. Further it is put that the evidence for the two witnesses for the Respondent did not waiver on the issue.

[201] The ANMF submits that the oral evidence of the ANMF witnesses disposed of the contention that they collaborated on their witness statements, and it is common practice for Industrial Advocates to take the statements of witnesses, and for those witnesses to adopt those statements by signing them. It was submitted that where the language in the statements is the same it is because the witnesses gave the same answer to a question.

Respondent witnesses cannot give direct evidence

[202] The ANMF submitted that both witnesses for the Respondent, the CEO and the medical consultant have little direct day to day interaction with non-managerial and nursing staff, especially about rates of pay and other day to day work directions. The ANMF submitted that neither of these witnesses were present to hear any of the directions given verbally by any of the managers. The ANMF submitted that the evidence of two witnesses for the Respondent is not capable of refuting the facts as stated, all it shows is that the nurses were not directed to attend work 15 minutes early by Mr Carter or Mr Dwyer and neither of them heard such a direction being given themselves.

Use of word ‘Now’ in email of 4 March 2022

[203] The Respondent submitted that the use of the word “now” in the communication on the afternoon of 4 March strongly supports it was a change in the position from 15 February.

[204] The Respondent said it was put that Ms Jeffrey expressed a belief that she had her pay docked. The Respondent said it did not need to put questions to Ms Jeffrey on that because a belief is not evidence, and the absence of cross examination on that point ought not be taken as an inference that the point is made. The time sheets are in evidence, and they do not support the claim. The Respondent said it was available to Ms Jeffrey to produce the pay slip to which she referred, and she didn’t. The Respondent submitted it is not for it to remedy this deficiency in the Applicant’s case.

13 May – 31 August 2022

[205] The Respondent submits that from 13 May – 31 August 2022 the Respondent;

(a) Directed staff to attend a RAT testing area immediately outside the facility doors at least 15 minutes before their rostered start time before their rostered start time for the purpose of taking a RAT, with a negative RAT result being a condition of entry to the facility to work; and

(b) Did not dock the pay of any staff member who arrived at work less than 15 minutes before their rostered shift start time.

[206] The Respondent submitted that with respect to the period from 13 May to 31 August 2022, the Respondent directed the employees to attend the facility 15 minutes before the rostered start of the work on a day, in order to take a RAT. However, the Respondent submitted it did not have a policy or practice of docking pay of the employee did not complete a RAT before the start of their rostered shift, or take any other disciplinary action if an employee did not comply. The Respondent submitted that during this period, the facility was in lockdown due to an outbreak of COVID 19 from 12 – 30 May 2022, and again from 16 June – 9 July 2022, and during those periods the direction for staff to take the RAT was in accordance with the CDNA Guidelines.

[207] The Respondent submitted that no employee is entitled to be paid for taking a RAT prior to the rostered start of work during an outbreak (lockdown) period, or outside of an outbreak period as it was not “work” for the purposes of the Agreement.

Condition of entry and CDNA Guidelines Issues

[208] The Respondent submits that in the period from 13 May to 31 August 2022, it was a condition of entry to the Facility that staff attend, take a RAT and present a negative result. The Respondent submits that this condition did not subject the employees to any continual duty to act or any continual command at a workplace or at a time nominated by the Respondent. The Respondent submitted that the employees are engaged to perform Personal Care duties as defined in the Agreement at the facility.

[209] The Respondent submitted that a RAT is not a substantive activity forming an essential aspect of the employee’s duties and responsibilities as Personal Carers at the Facility, for the purpose of the Agreement.

[210] The ANMF submitted that it was the Respondent’s decision to require all staff and visitors to undertake a RAT prior to entering the premises where the employees perform their other work, and to establish this as a condition of entry. It was not imposed by the State or Commonwealth Government, nor any other third party.

[211] The Respondent submitted that its arrangements regarding RATs at the facility were consistent at all times with Commonwealth and State Government public health guidelines. The Respondent submitted that in particular, during an outbreak of COVID-19 at the facility:

(a) The Respondent has an obligation to follow advice on RAT testing for screening and diagnosis; (CDNA page 5)

(b) Where there is high, ongoing community transmission, the Respondent is to consider Testing as part of risk management measures, including Testing prior to staff entry to the facility; (CDNA page 21)

(c) All visitors including personal carers and other staff are required to present a negative Test result prior to entry to the facility (CDNA page 40)

(d) The Facility is required to implement a screening program for staff to Test where there are symptoms or contact with COVID 19: Checklist page 1

(e) The facility is required to Test all staff who are symptomatic, or who are close contacts, or who have high risk exposures: Checklist page 5.

[212] The Respondent submitted that these responses should rightly be regarded as public health activities in line with the mutual and individual responsibilities of staff and the Respondent in accordance with the Work Health and Safety Act 2011 (Qld).

[213] The Respondent contends that an employee who performed a RAT as a condition of entry to the facility, prior to the rostered start of work is not at work, and the time spent doing so is not time worked.

[214] The ANMF submits that at paragraph 42 of their submissions, the Respondent makes a range of assertions about the application of the CDNA Guidelines at the Jeta Gardens facility. The ANMF submits that these assertions are not supported by the evidence, as neither of the Respondent’s witnesses (nor the Applicant’s witnesses) make any mention at all of these guidelines.

[215] The ANMF submits further, the Respondent incorrectly states that the CDNA Guidelines on page 40, “require” staff as well as visitors to complete a RAT prior to entering the premises. The guidance applying to staff in an outbreak is contained on page 41, which says that staff “should” be “…regularly screened for symptoms (and tested, if necessary) …”.

After 1 September

[216] The ANMF acknowledged that from 1 September 2022 the practice changed, and employees were expected to undertake a RAT from home. The ANMF said it did not wish to make any comment regarding this changed practice as it falls outside the scope of this dispute.

[217] The Respondent submitted that from 1 September 2022, it has made RATs available for all staff to take at home, or at any other place and at any time prior to or at the start of work each day. The Respondent submitted that it no longer requires any staff to attend the facility at a particular time before the rostered start of a shift to take the RAT.

[218] I accept the ANMF position that the events from 1 September 2022 fall outside the scope of the dispute and it is unnecessary for me to deal with that issue.

Was it working?

Whether the nursing and care staff have performed work that attracts the relevant overtime rate when they have complied with the direction to attend work early and complete a RAT.

[219] The ANMF submits complying with the direction to undertake a RAT constitutes work.

[220] The ANMF submits every leading authority supports the contention that the employees were working because;

(1) The employees were directed to be at a certain location, that is there workplace; and they were directed by representatives of management to be at a location at a certain time, that is 15 minutes before the commencement of their designated shift;

(2) They were directed by representatives of management to perform certain tasks;

(3) The directions by representatives of management were made in accordance with the enterprise agreement and their contracts of employment.

[221] The ANMF says the Respondent has argued that work can only occur when the activities are specifically provided for in the terms of the award or enterprise agreement.

[222] The ANMF relies on the recent decision of Jay Seo v Bindaree Food Group Pty [2021] FWCFB 2691 (Seo) where a Full Bench of the Commission considered ‘what is work’ and the leading authorities on that question. The ANMF submitted that in Seo the Full Bench determined that the donning and doffing of PPE was work, despite it not being specifically provided for in the applicable industrial instrument.

[223] The Full Bench considered whether activities that the employer (Bindaree) required the employee (Mr Seo) to perform during his ‘meal break’ was work in the context of the Award which applied to Mr Seo’s employment. The Full Bench found:

“…

[29] … (The) dispute related to the operation of clause 15.1 of the Award, unpaid meal breaks …. Mr Seo asserted in his application that:

“During our break time we are required to do other work (in particular donning and doffing of PPE which is essential to our job, but also other work such as cleaning and sharpening of knives) and we are not allowed to enter the break room or return to the production area until we complete this work.”

…

[33] The Deputy President examined the activities of donning and doffing PPE and other processes required of Mr Seo in connection with his meal break in order to determine whether they were “work” within the meaning of the Award.

[34] What constitutes “work” or “time worked” within the meaning of an industrial instrument has been considered in a number of different cases. In Minister for Police v WA Police Force Union of Workers, a decision of the Western Australian Industrial Appeal Court, Neville J said (at 993):

“It seems to me that if a worker is instructed by a superior, whom it is his duty to obey, that he must do certain things and must not do certain other things, during a certain period he must, during that period, be on duty and, in the terms of this award, therefore, that time must be time worked.””

[224] The ANMF submits by reference to the decision in Seo and WA Police that the employees in this case must have been on duty during the relevant period, and, in the terms of the Agreement, that time must be time worked.

[225] The Respondent submitted that the case in WA Police concerned time spent by a police constable “on-call” and the industrial instrument in question provided a specific allowance for being on call. The Respondent submitted that the period of time in question was a set period in which the police constable was required to remain at home, not consume alcohol, and be available and prepared to conduct breathalyser tests when required by the employer. The Respondent emphasised the words “during a certain period” and “during that period” in the paragraph from the decision of Neville J set out above.

[226] The Respondent referred to the following in the decision of Burt J agreeing with Neville J:

“As soon as one sees that throughout that period he is subject to continual command of the employer, if I can refer to the commissioner in that way, or to the Honourable Minister in that way, to stay at home and to abstain from doing certain things and to be ready to work in a more extensive manner should he be called upon, I think one is compelled to say that that period is time worked”.

[227] The ANMF also referred to the determination in Seo, where the Full Bench cited another authority in which it was held that time spent overnight by a nursing assistant on nursing home premises under instructions to “report any emergencies which arose relative to the residents of the home was “time worked”. The extract from the decision is as follows:

“[36] In another decision of the Western Australian Industrial Appeal Court, Hospital Employees’ Industrial Union of Workers, WA v Proprietors of Lee-Downs Nursing Home,[26] Burt CJ addressed the concept of time worked under the relevant award in the following terms:

“In my opinion time is ‘time worked’ within the meaning of the award if it can be seen that the worker is during the time under consideration doing, whatever it is that he is doing, upon instructions, express or implied given to him by his employer. What he is doing need not involve any physical activity. It may be that he is required to be in a certain place at and during a certain time so that he can act should a certain event happen and in such a case, as it seems to me, the time so spent is ‘time worked’ whether the event initiating physical activity happens or does not happen. He also serves who only stands and waits.””

[228] The ANMF submits that the time spent by employees of the Respondent complying with the Testing Protocol is ‘time worked’ because the employees are under the express instructions of the employer to perform a task (self-administer a RAT and await the result) at a certain place (the Testing Area) and during a certain time (15 to 20 minutes before the commencement of the rostered start time).

[229] The Respondent submitted that the Hospital Employees case was about on-call which was expressly provided for in the industrial instrument.

[230] The Respondent submitted that in Federated Municipal & Shire Council Employees Union of Australia v Shire of Albany [1990] FCA 58, a dispute arose as to whether the employer was obliged to pay employees for their time spent travelling from the job site to the employer’s depot at the end of the workday. The Respondent submitted that while it was not clear if that travel was on the instruction of the employer, the Court inferred it to be an incident of the instruction requiring such travel to the site at the beginning of the day. The Award that applied provided for payment of excess travel time when an employee had to attend a workplace in excess of the usual travel time between home and work but noted that time was distinct from time worked. The Respondent referred to the conclusion of French J in the decision having considered earlier authorities as follows:

“while the general principles enunciated in that line of cases indicates criteria for the determination of “time worked” where that expression is used in industrial awards, the decision in any particular case must depend upon the construction of the relevant award, whether it makes specific provision for the activity in question, and facts of the case.”

[231] The ANMF also relies on another extract from the decision in Seo as follows:

“[38] In Master Builders’ Association of Victoria v Australian Building Construction Employees' and Builders Labourers' Federation, a question arose as to whether time spent by an employee driving a vehicle provided free of charge by his employer from home to work and return was "working time" under the relevant award. The Full Court of the Federal Court comprising Evatt and Northrop JJ said (at 36):

“The true answer is to be found by considering the terms of the contract of employment and the terms of the award providing for payment of wages. The interpretation is sought in circumstances where the employee is required, pursuant to his contract of employment, to drive the vehicle. During other hours of work he performs work admittedly that of a builder's labourer. This must mean that as part of his duties as an employee he is required to drive the vehicle from his home to his place of employment and return on any one day. Put another way, when the employee is driving the vehicle, he is performing a duty required of him by his employer; he is performing an obligation imposed upon him by his contract of employment. Such a man is in our view a builder's labourer within the meaning of the award.””

[232] The ANMF submits that the contracts of employment issued by the Respondent contain standard terms. The employment contract of Ms Harbour, that is in evidence (the Contract), relevantly provides the following guidance as to what constitutes work:

“Your work shall be by hourly engagement, as required by the employer and according to Jeta Gardens Enterprise Agreement 2016 provisions”

[233] The ANMF submits that as set out in Master Builders, the relevant terms of the Contract must be considered alongside the relevant terms of the applicable industrial instrument, in this case, clauses 10.5, 27.1 and 18 of the Agreement.

[234] The ANMF submits that in considering the above clause of the contract alongside the wording of clause 10.5 of the Agreement, it is clear that any duties that the Respondent directs (or requires) its employees to carry out pursuant to clause 10.5 is “your work”, as referenced in the Contract. In this case, the Respondent has required its employees to comply with the Testing Protocol pursuant to clause 10.5. As such the employees have performed work by complying with this direction.

[235] The ANMF submits that clauses 27.1 and 18 of the Agreement provide for either the payment of overtime penalty rates for certain ‘hours worked’ or for the payment of wages in full, on a fortnightly basis. Again, ‘hours worked’ can be construed from the terms of the Contract to be when performing duties “…as required by the employer and according to [the Agreement] provisions”.

[236] The ANMF also referred to Seo citing another authority as follows:

“[40] In Warramunda Village Inc v Pryde, the Full Court of the Federal Court held (Gyles J dissenting) that employees rostered on a “sleepover shift” were engaged in “work” for the purposes of the relevant award (which fixed remuneration by reference to hours worked). The employees were required to live at a hostel and be on call for assistance during the night but were entitled to sleep or do as they wished during the shift unless they were actually called on. Justice Lee said (at [17]-[18]):

“... An employee who attends at the place of employment pursuant to the employer's direction to be at the employer's premises for a period of time and be available to provide service at the premises as required by the employer, is not carrying on private activities but is providing service to the employer. Such an employee is at "work" for the purposes of the 1995 Award and is entitled to be remunerated according to the terms of the Award. (See: Hospital Employees' Industrial Union of Workers, WA v Proprietors of Lee-Downs Nursing Home (1977) 57 WAIG 455 per Burt CJ at 456).

…

[41] Justice Finkelstein rejected (at [31]) the appellant’s argument that an employee on a sleepover shift does not perform “work” unless the employee is actively attending to the needs of a patient. This argument by the appellant proceeded on the footing that the word “work” when used in the award should be given its dictionary meaning of “labouring” or “toiling”. His Honour observed (at [37]):

“... the words “work” or “worked” when used in provisions such as cl 13 and cl 15 do not bear the meaning assigned to them by the appellant. The authorities show that when such words are used in instruments of the type presently under consideration, what is referred to is an employee who is under the instruction of an employer: the time under instruction is time worked…”

…

[237] The ANMF submits that as in Warramunda Village, while the employees of the Respondent are complying with the Testing Protocol outside of their rostered hours, they are not carrying on private activities, but are rather providing a service to their employer. How the employer requires the employee to render service is a matter for the employer, as found in Warramunda Village, and as it is for the Respondent in this dispute.

[238] The Respondent also referred to the decision in Warramunda Village Inc v Pryde and referred to the following part of Finkelstein J’s decision in relation to when an employee is on call.

“An employee who is required to be “on call” is an employee who must attend at work when called to do so. Until the employee is called to attend work, he is not working. A worker on a sleepover shift, by contrast, is always at work. A worker cannot be “on call” and at work at the same time.”

[239] The ANMF also relies on the reference in Seo, to a decision in Ovation New Zealand Limited v New Zealand Meat Workers and Related Trades Union Incorporated as follows:

“[42] In Ovation New Zealand Limited v New Zealand Meat Workers and Related Trades Union Incorporated, a decision of the Employment Court of New Zealand, Judge Corkhill decided that a range of tasks including cleaning gloves, boots, aprons and scabbards and donning and removing protective clothing and equipment at the beginning and end of each shift, and at rest and meal breaks, by employees working in a meat processing plant was “work” for the purposes of s 6 of the Minimum Wage Act 1983 (New Zealand). …”

[240] The ANMF submits that as in Ovation, by complying with the Testing Protocol, the employees of the Respondent are performing ‘work’, because they are complying with a direction to perform a task prior to commencing their rostered shift.

[241] The ANMF referred to the conclusion in Seo as follows:

“[43] Drawing these authorities together, we consider that whether particular activities constitute “work” within the meaning of an industrial instrument depends on the proper construction of the relevant instrument and the facts of the particular case.”

[242] The ANMF submits that in this matter, the power of an employer under clause 10.5(a) to “direct an employee to carry out such duties…” is consistent with the notion of work as referring to an employee who is under the instruction or direction of their employer or is required by their employer to do certain things. This is also the case for the relevant provision in the Contract referring to an employee’s “work”, as being “… as required by the employer and according to [the Agreement] provisions.”

[243] The ANMF also referred to paragraph 56 in Seo:

“[56] …, there is no doubt that some of the meal break activities, such as donning and doffing PPE, provided some benefit to Mr Seo as well as to Bindaree, and are a feature of the industry in which the work is conducted. However, this does not detract from the fact that Bindaree required all the meal break activities to be undertaken by Mr Seo before he could prepare or partake in a meal or engage in any other activity of his choice. Mr Seo did not have available to him the choice not to engage in some or all of the meal break activities. This is to be contrasted to many other employees in different workplaces who choose to wash their hands or remove an item of PPE before eating on a meal break. Nor is this a case where it could be seriously contended that the amount of time taken to undertake the meal break activities was so minimal it should be regarded as de minimis. We are not, for example, dealing with a requirement that an employee put on a safety helmet, safety glasses and a hi-vis vest on their way out of the crib room at the end of a meal break.”

[244] The ANMF submits that an employee of the Respondent does not obtain a direct benefit from complying with the Testing Protocol. The purpose of the Testing Protocol is to identify whether the employee is carrying a hazardous infection into the facility, not to offer that employee any form of protection or treatment. Regardless, the employee is not offered any choice as to whether they comply with the Testing Protocol, it is a mandatory direction that has been issued by the Respondent.

[245] The ANMF submits that it could not be seriously contended that the amount of time taken to comply with the Testing Protocol, that being 15 – 20 minutes is so minimal it should be regarded as de minimis.

[246] The ANMF also referred to paragraph 57 of Seo where the Full Bench said as follows:

“[57] Because Mr Seo was required by Bindaree to undertake the meal break activities, which were substantive, before he could prepare or partake in a meal or engage in any other activity of his choice, and also after he had partaken in a meal or activity of his choice, we consider that the time reasonably taken to engage in the meal break activities was not part of Mr Seo’s 30-minute unpaid meal break in accordance with clause 15.1(a) of the Award. The meal break activities constitute “work” undertaken by Mr Seo within the meaning of clause 15.1 of the Award. The Deputy President’s determination that the meal break activities were not part of Mr Seo’s “work” and, as a result, Mr Seo did not have less than a 30-minute meal break was, we respectfully conclude, in error.”

[247] The ANMF submits that because employees of the Respondent are required by the Respondent to comply with the Testing Protocol, which is a substantive duty, before they commence their rostered shift, the time taken to comply with the Testing Protocol constitutes “work” undertaken by the employees, as this is consistent with all of the leading authorities in this area, including Seo, which is the most recent Full Bench decision on the question of what constitutes “work”.

[248] The Respondent submits in the authorities referred to in its submissions, the facts involved an employee, or group of employees each of whom were required to be at a particular place and at times directed by their employer to undertake a specific activity. The Respondent submitted that these authorities support a contention that “work” or “time worked” can only occur where:

(a) The activity is specifically provided for in the terms of the Award or enterprise agreement;

(b) The employer has directed the employee to be at a particular workplace and at specific times;

(c) The employer has directed the employee to perform the activity, or remain in readiness at that place at that time to do that activity if called upon to do so.

[249] The Respondent submitted that the case in Seo was not about the donning and doffing of PPE. The Respondent noted that the Full Bench said the issue of the donning and doffing of PPE had no connection to the impugned clause dealing with unpaid meals breaks. The Respondent seeks to distinguish Seo on the basis that it dealt with a particular clause pertaining to unpaid meal breaks, and that is not the case in this matter.

[250] On 5 October 2022, I raised with the parties a decision of the Federal Circuit Court of 30 September 2022, Shop, Distributive & Allied Employees' Association v Aldi Foods Pty Ltd [2022] FedCFamC2G 799 (‘Aldi Decision’) and invited the parties to make any further submissions they wished to in light of this decision by 5:00pm (Qld time) Wednesday 12 October 2022. Both parties submitted further submissions.

[251] The ANMF submitted that the Aldi Decision and this matter both concern whether 15 minutes of activity that the respective employers required their respective employees to perform before their rostered commencement time on each shift is work, and therefore, the judgment is therefore very persuasive in this matter.

[252] The ANMF highlighted paragraph [38] that said:

“The characterisation as to whether or not activities will constitute work will depend upon the construction of the relevant industrial instrument and whether it makes a specific provision for the activity in question, and the facts in the case.”

[253] The ANMF submitted that if a relevant industrial instrument makes a specific provision for the activity in question, there can be little doubt such an activity is work (unless the specific provision is that the activity in question is not work). The ANMF submitted that the Aldi Decision does not include any statements about what conclusion should be drawn where the relevant industrial instrument does not make specific provision for the activity in question. Most importantly, however, the relevant industrial instrument in that case did not make specific provision for the activities in question of the Aldi employees, and the Court found that those activities were work. The ANMF submitted that likewise, the Agreement does not make specific provision for the activities in question (RATs). RATs did not exist when the Agreement was made in 2019.

[254] The ANMF submitted that nothing in the Aldi Decision supports the Respondent’s submissions, and similarly, the Commission should find that the pre-commencement RAT task is work and then the time taken to perform that task is liable for payment by the Respondent employer.

[255] The Respondent submitted that the key facts in the Aldi Decision are distinguishable from the facts in the present matter. The Aldi Decision caused Humphreys J to consider whether time taken by employees to perform tasks prior to the commencement of their shift (pre-commencement tasks) should be regarded as time ‘worked’ and therefore should be paid. The pre-commencement tasks Aldi employees were required to perform included:

a) walking to a materials handling equipment area;

b) locating and then undertaking various safety checks on stock pickers;

c) driving the picker to a central location;

d) picking up and checking a communication device; and

e) recording various things on a sign in sheet.

[256] The Respondent submitted that the undertaking of a RAT is not an activity performed for the sole benefit of the Respondent, and the performance of the Test benefits everyone at the facility, including the Respondent, its employees, its residents, visitors, and other personnel who enter the facility. The Respondent submitted that the Test safeguards the safety of all persons at the facility by ensuring that COVID-19 does not enter the facility. Ensuring that COVID-19 does not enter the facility protects the individual wellbeing of all persons at the facility.

[257] It was submitted by the Respondent that the undertaking of the RAT is distinguishable from the undertaking of activities as outlined in the Aldi Decision as the Test is undertaken for the equal benefit of all persons at the facility, not solely for the benefit of the Respondent. Therefore, the activity of conducting the Test cannot, following Humphreys J reasoning, be said to constitute work.

[258] Turning to whether the Agreement makes specific provision for the undertaking of the Test, the Respondent submitted that the Agreement contains no terms that specifically require employees to undertake the RAT.

[259] The Respondent submitted that the facts in Aldi and the principles and reasoning enunciated by Humphreys J are apposite to those before the Commission in these proceedings and support the Respondent’s submissions.

[260] The ANMF submits that the classification descriptors in the Schedules of the Agreement have been drafted in very broad and inclusive language, and the Respondent’s direction to staff to comply with an infection control measure is not inconsistent with any of the classification definitions of the Agreement.

[261] The ANMF submits that clause 10.5 of the Agreement permits the Respondent to direct its employees to carry out duties that are within the skill, competency and training of the employee. The clause reads as follows:

“10.5 Duties within Skill, Competency and Training

(a) An Employer may direct an Employee to carry out such duties as are within the limits of the Employee's skill, competence and training consistent with the classification structure of this Agreement provided that such duties are not designed to promote de-skilling.

(b) An Employer may direct an Employee to carry out such duties and use the equipment as may be required provided that the Employee has been properly trained in the use of the equipment.

(c) Any direction issued by an Employer pursuant to sub-clause (a) and (b) shall be consistent with the Employer's responsibilities to provide a safe and healthy working environment.

[262] The ANMF submits that the direction to staff to comply with an infection control measure is not inconsistent with any of the classification definitions in the enterprise agreement. The ANMF submits that it is not tenable for the Respondent to submit that any activity that an employee many be required to perform by their employer, that is not specifically provided for in the text of their enterprise agreement or award cannot be regarded as work.

[263] The ANMF submitted that this is not a contention that could be applied broadly as millions of Australians are covered by Awards not enterprise agreements, and most do not contain specific duties at all, or even a list of activities that are specific in any way, and instead have generic broadly drafted classification descriptors.

[264] The ANMF submitted that the purpose of clause 10.5 is to allow the Respondent to direct employees to perform a range of duties not specifically provided for in the Agreement, that are within their skill, competency and training.

[265] The ANMF submitted that there is evidence before the Commission that the employer provided training to staff, or at least offered to provide training regarding the taking of RAT’s. The ANMF submitted that there is no question that undertaking a RAT is well within the skill set and competency of every nurse and personal carer working for the Respondent.

[266] The ANMF submits this wording in the contract alongside clause 10.5 of the enterprise agreement, make clear that any duties that the Respondent directs or requires its employees to carry out pursuant to clause 10.5 is your work as referenced in the contract. The ANMF submits the employees have performed work by complying with the direction.

[267] The ANMF referred to The Contract of Employment, 2nd Edition, Mark Irving B Juris, LLB, member of the Victorian Bar, who wrote at [4.30] on p.212:

“First, in standard employment contracts wages are not earned by the performance of work. They are ordinarily earned by the agreed service. Most of the time the agreed service involves obeying the instructions of the employer who directs the employee to perform actual work (usually at its premises), and so the failure to comply with those instructions results in no wages being earned. An employee directed to stay at home earns wages, though he or she does not perform actual work….

It is suggested that ordinarily it is the obedience of instructions about the performance of work that is the part of the service that earns the remuneration. Each employee owes a series of obligations: to obey instructions, to keep confidences, to perform faithfully, to perform duties with care etc: …”

[268] The ANMF submits the above commentary is relevant to this matter, as the employment contract that has been included in evidence is also ‘standard’ in that it does not contain any express term about what it is that earns wages, nor an express definition of “work”. However, the terms of the Contract do make it clear that “your work” is … “as required by the employer and according to [the Agreement] provisions”. As stated by Mr Irving, it is ordinarily the obedience of instructions, in other words, to do what is required by the employer, that is considered work and that earns wages.

[269] The Respondent submits that the Agreement contains no terms that expressly require the employees to undertake the RAT, does not characterise the activity in undertaking the RAT to be “work” and does not provide for an allowance or other payment for completing the activity.

[270] The Respondent submits that the Agreement does not define “work” but contains numerous references to “work”. The Respondent submitted clause 10.5 of the Agreement allows the Respondent to direct an employee to perform “such duties” within the limits of the words in the clause.

[271] The Respondent submits firstly that “such duties” can only be a reference to the duties that are to be provided to the employee in writing on commencement, transfer or promotion referring to clause 10.1(b) of the Agreement which provides as follows:

“(b) An employee shall on commencing employment or on transfer or promotion, be provided by the employer with a written statement outlining the employee’s:

(i) classification and duties;

(ii) anticipated hours of employment;

(iii) rate of pay;

(iv) date of appointment or transfer or promotion.”

[272] The Respondent submitted secondly that “such duties” must be those contained in the classification descriptors in the Agreement. The Respondent submitted in the case of Personal Carers, those duties are set out in Schedule D to the Agreement;

(a) In the definition of Personal Care Work, and the indicative tasks on page 29; and

(b) In the “duties” of Personal Care Work Level 1 (page 30), Level 2 (page 31), Level 3 (page 32), Level 4 (page 33) and Level 5 (page 34).

[273] The Respondent submits that third, the words in clause 10.5 do not provide the Respondent with a right to direct an employee to undertake other duties, i.e those that are incidental or ancillary, or in addition to or outside those otherwise specified in the Agreement.

[274] Finally, the Respondent submits that the RAT is not an activity or task that is similar to, or consistent with any of the tasks identified as the duties of a Personal Carer in the Agreement.

Overtime Issue

[275] The ANMF submits that under the Agreement Ms Harbour and Ms Jeffrey are entitled to be paid at the overtime rate for the relevant times. The ANMF submits that the rate of pay payable has always formed part of the dispute, from the first notification of the dispute on 17 May to the filing of the F10 application on 7 July, it has always been about the employer’s refusal to pay employees at the applicable overtime rate.

[276] In the first notification of the dispute sent by the ANMF to the Respondent on 17 May 2022 the Applicant advised that employees are “entitled to be remunerated… at the applicable rate of pay (including shift penalties or overtime if applicable)”.

[277] At section 2.1 of the Applicant’s F10 filed on 7 July 2022, the ANMF answered the question “what is the dispute about?” by stating that its members had performed work and were “entitled to be paid for this time at the applicable overtime rate”.

[278] At section 3.1 of the Applicant’s F10 filed on 7 July 2022, the ANMF answered the question “what relief are you seeking…” with a request for a determination from the Commission to state that “the employer must pay wages to the employee[s] at the applicable overtime rate”.

[279] Clause 27 of the Agreement reads as follows:

27. Overtime

27.1 Overtime penalty rates

(a) Hours worked in excess of the rostered ordinary hours on any day or shift prescribed in clause 20—Ordinary hours of work, are to be paid as follows:

(i) Monday to Friday (inclusive)–time and a half for the first two hours and double time thereafter;

(ii) Saturday and Sunday–double time;

(iii) Public holidays–double time and a half.

(b) Overtime rates under this clause will be in substitution for and not cumulative upon the shift premiums prescribed in clause 29.

[280] The Respondent submitted that the dispute does not turn on whether the RAT is a particular type of work that attracts a particular rate of pay.

[281] I asked the Respondent why I could not deal with the issue as a matter of interpretation if I was sympathetic to the ANMF position. The Respondent submitted that the two witnesses for the ANMF were part time employees and the circumstances for the roster of a part time employee are different to that of a full time or casual employee and no evidence has been led by Ms Harbour or Ms Jeffrey about whether they had agreed to come into work 15 minutes early or not, and whether that amounts to a roster change or not.

[282] The part-time employment clause in the Agreement is as follows:

10.3 Part-time Employment

(a) A part-time employee means an employee who is engaged as such to work reasonably predictable rostered regular hours and who is employed for a minimum of 20 hours per fortnight but less than 76 hours per fortnight.

(b) Before commencing part-time employment, the Employer and employee will agree in writing the guaranteed minimum number of hours to be worked and the rostering arrangements which will apply to those hours.

(c) By mutual Agreement between the employer and the employee, additional hours up to 10 hours on any one day may be worked and paid at the employee’s ordinary rate of pay.

(d) Part time employees shall be paid at an hourly rate equal to one-thirty-eighth of the weekly rate prescribed by the Agreement for the classification under which they are engaged with a minimum payment of 3 continuous hours on any day when work is performed.

(e) A part-time employee is entitled to annual leave, personal leave, long service leave, compassionate leave and all public holidays on the same basis as full-time employees on which the employee would have otherwise worked calculated on the ordinary hours of work in accordance with subclause (b) hereof. Such employees shall be entitled to allowances where applicable under the Agreement.

[283] The Respondent submitted that there are a range of considerations in the Agreement before any determination can be made on whether overtime is payable, and there is an absence of evidence that has been led in relation to those matters. The Respondent gave as an example clause 24, the Roster clause. The Respondent submitted that for the Commission to make a finding in relation to payment it would be necessary to adduce evidence in relation to clause 24.

[284] The Respondent submitted that based on the timesheets in evidence there are days that the witnesses have picked up shifts because other staff are absent. There has been no evidence led about whether coming in early has been to enable the functioning of the facility in an emergency bearing in mind there have been four separate periods of lock downs. The Respondent submitted as there is no evidence on these matters it would be unsafe to consider what rate of pay the employees ought to be paid if the Commission were to find there was a period for which they should be paid.

[285] The Respondent submitted there are timesheets in the evidence and referred to the timesheets of Ms Jeffrey for the period from 8 February 2022 to the end of August 2022. The Respondent said these are evidence of the times Ms Jeffrey started and finished work on a particular day.

[286] The ANMF in response referred to the Agreed Statement of Facts at paragraph 10 and 11, and 12 and said because these points were agreed they did not lead any evidence in relation to that issue.

[287] Clause 24 Roster reads as follows:

(a) Employees will work in accordance with a weekly or fortnightly roster fixed by the Employer.

(b) The roster will set out employees’ daily ordinary working hours and starting and finishing times and will be displayed in a place conveniently accessible to employees at least seven days before the commencement of the roster period.

(c) Unless the Employer otherwise agrees, an employee desiring a roster change will give seven days’ notice except where the employee is ill or in an emergency.

(d) Seven days’ notice of a change of roster will be given by the employer to an employee. Except that, a roster may be altered at any time to enable the functions of the facility to be carried out where another employee is absent from work due to illness or in an emergency. Where any such alteration requires an employee working on a day which would otherwise have been the employee’s day off, the day off instead will be as mutually arranged.

(e) The employer will ensure that the rostered hours for registered nurses includes a 15 minute handover at end/beginning of each shift worked.

[288] The ANMF submit that it is agreed between the parties that the Respondent produces a fortnightly roster of the daily ordinary working hours and starting and finishing times of its nursing and care staff, and that this roster is emailed to nursing and care staff prior to the commencement of each roster period.

[289] The ANMF submit that it is also agreed that the time spent by nursing and care staff in complying with the Testing Protocol is not included in the rosters published by the Respondent.

[290] The ANMF submit that clauses 24(c) and (d) of the Agreement allow changes to be made to an employee’s roster without seven days’ notice, only where:

(a) the employee requests the change, and the employer agrees to it,

(b) the employee requires the change due to illness or in an emergency, or

(c) the employer requires the change because another employee is absent from work due to illness or an emergency.

[291] The ANMF submits that the evidence before the Commission shows that the Respondent has required, rather than obtained the agreement of employees to perform an additional 15 – 20 minutes’ work prior to the commencement of each of their shifts, in order to comply with the Testing Protocol.

[292] The ANMF submits that the Respondent’s direction for staff to perform work before their rostered shift start time was not made because another employee was absent from work due to illness or emergency.

[293] The ANMF submits that by reason of the above, the rosters published by the Respondent did not include the work performed by employees in complying with the Testing Protocol, nor were there any changes made to the roster after they were published, to include this time.

[294] The ANMF submit the work performed by employees in complying with the Testing Protocol was work performed in excess of their rostered ordinary hours on each shift. Pursuant to clause 27.1(a) of the Agreement, this work must be paid at the overtime penalty rates set out in subclauses 27.1(a) (i) to (iii).

[295] Clause 18 of the Agreement includes the following:

“18. Payment of wages

18.1 All wages shall be paid in full fortnightly by electronic funds transfer (EFT) into the employee’s account in any financial institution (which has that facility) nominated by the employee without cost to the employee.

18.2 Wages shall become payable no later than at the end of work on the second normal working day following the completion of a fortnightly roster period. Should a public holiday occur during the two working days following the completion of a fortnightly roster period, payment of wages may be delayed no longer than the period of such public holidays.

…”

[296] The ANMF submits that it is agreed between the parties in paragraph 9 of the Agreed Statement of Facts that since 15 February 2022, the Respondent has not paid any nursing or care staff member for taking a RAT prior to the rostered start of a shift.

[297] ANMF submits pursuant to clause 27.1(a) of the Agreement, wages are payable to these employees at the applicable overtime penalty rate set out in subclauses 27.1(a)(i) to (iii). Further pursuant to clauses 18.1 and 18.2 of the Agreement, all wages owing to nursing and care staff should be paid in full to the employee after the completion of each fortnightly roster period.

CONCLUSION

[298] Section 52 of the Fair Work Act 2009 provides as follows:

When an enterprise agreement applies to an employer, employee or employee organisation

When an enterprise agreement applies to an employee, employer or organisation

(1) An enterprise agreement applies to an employee, employer or employee organisation if:

(a) the agreement is in operation; and

(b) the agreement covers the employee, employer or organisation; and

(c) no other provision of this Act provides, or has the effect, that the agreement does not apply to the employee, employer or organisation.

Enterprise agreements apply to employees in relation to particular employment

(2) A reference in this Act to an enterprise agreement applying to an employee is a reference to the agreement applying to the employee in relation to particular employment.”

[299] Having considered all of the evidence and submissions I have determined that the appropriate questions for arbitration to resolve the dispute are as follows:

1. Did the Jeta Gardens Enterprise Agreement 2019 apply to the Respondent, Ms Harbour and Ms Jeffrey between the dates of 15 February 2022 and 3 March 2022, for the time from when Ms Harbour and Ms Jeffrey arrived at the facility before their rostered start time, completed a COVID-19 Rapid Antigen Test, and remained in the testing area until the COVID-19 Rapid Antigen Test result was known, and are Ms Harbour and Ms Jeffrey entitled to be paid for that time.

2. Did the Jeta Gardens Enterprise Agreement 2019 apply to the Respondent, Ms Harbour and Ms Jeffrey between the dates of 4 March 2022 and 12 May 2022, for the time from when Ms Harbour and Ms Jeffrey arrived at the facility before their rostered start time, completed a COVID-19 Rapid Antigen Test, and remained in the testing area until the COVID-19 Rapid Antigen Test result was known, and are Ms Harbour and Ms Jeffrey entitled to be paid for that time.

3. Did the Jeta Gardens Enterprise Agreement 2019 apply to the Respondent, and its employees who are covered by the Agreement, between the dates of 13 May 2022 and 1 September 2022, for the time from when those employees arrived at the facility before their rostered start time, completed a COVID-19 Rapid Antigen Test, and remained in the testing area until the COVID-19 Rapid Antigen Test result was known, and are those employees entitled to be paid for that time.

[300] I have decided not to address the overtime issue as part of an arbitrated determination and have decided to address that issue by way of expressing an opinion and making a recommendation as I am entitled to do under the terms of the clause 9 of the Agreement. I will deal with that matter further below.

1. Did the Jeta Gardens Enterprise Agreement 2019 apply to the Respondent, Ms Harbour and Ms Jeffrey between the dates of 15 February 2022 and 3 March 2022, for the time from when Ms Harbour and Ms Jeffrey arrived at the facility before their rostered start time, completed a COVID-19 Rapid Antigen Test, and remained in the testing area until the COVID-19 Rapid Antigen Test result was known, and are Ms Harbour and Ms Jeffrey entitled to be paid for that time?

[301] It was put to Ms Harbour that what she claimed at paragraph 8 of her statement was inconsistent with what was said in the 15 February email. Ms Harbour agreed it was not consistent with the written email. It was also put to Ms Harbour that what she said in her paragraph 8 was inconsistent with the information she was given in the 19 February email concerning RAT testing every 72 hours. She agreed they were not consistent. It was put to Ms Harbour that her paragraph 8 was also not consistent with what she was given in writing on 4 March and she agreed.

[302] It was put to Ms Jeffrey that the testing protocol she described at paragraph 6 of her statement is exactly what the 13 May email says, and is exactly the protocol established by the email of 13 May. Ms Jeffrey said they had been RAT testing for months before May.

[303] I accept Mr Carter’s evidence he did not authorise staff to be given a direction that they were required to undertake a RAT test from 15 February, or that they were directed to be at work 15 minutes before their usual starting time.

[304] Having considered the email of 15 February, I prefer the Respondent’s position that the first and second sentence are directed to COVID-19 screening prior to entering the facility and were not directed to RAT’s. The last sentence is directed to RATs and it uses the word “should”. This supports the Respondent’s case, and particularly the evidence of Mr Carter that the Respondent did not at this stage issue a direction requiring RAT testing. This email made no reference to a direction to report to work 15 minutes early.

[305] The congratulatory email of Ms Ling on 19 February included advice from ‘Public Health’ referring to staff doing a RAT every 3 days from that point. This also appears to be inconsistent with the claim that staff were directed to report to work 15 minutes early to do a RAT every day.

[306] It is more likely the Respondent was operating on the basis that in the circumstances from 15 February 2022 after the COVID 19 outbreak, staff were prepared to report to work at an earlier time than their rostered shift time to undertake a RAT without yet being giving a formal direction. It is sufficiently clear from the evidence that it was not the formal policy of the Respondent from 15 February that this was a requirement.

[307] I have not lightly dismissed the evidence of Ms Harbour and Ms Jeffrey on this issue. I accept that Ms Harbour and Ms Jeffrey held a belief that they were required to undertake RAT before the commencement of shift from 15 February 2022, however I am not satisfied on the basis of the evidence that it would be safe to conclude that they had been directed by the Respondent that they were required to do so.

[308] It is possible that a supervisor or supervisors may have purported to tell employees that they were required to undertake the tests as claimed by Ms Harbour and Ms Jeffrey but the evidence tends to weigh more in favour that was not the Respondent’s position at that point. If a supervisor purported to give such a direction the evidence supports the conclusion that such a direction was contrary to the position of the Respondent, and not authorised by the Respondent.

[309] There is no contemporaneous document to support the claims that the employees were told they had to report for work 15 minutes early for the period from 15 February 2022 to 3 March. It would be expected if such a significant change had occurred there would be a record of it. The only contemporaneous document that does exist uses of the words “..should RAT test prior to entry to the facility each day they come to work.” This does not support the case that employees were being required to complete a RAT, and certainly does not support the case that employees were being required to complete a RAT 15 minutes prior to commencement of shift, as became the case later.

[310] The ANMF has relied on the evidence of Ms Harbour and Ms Jeffrey to suggest that other documents that cannot be produced because of the SARA system being decommissioned, may exist but were not produced by the Respondent and these documents would have supported its case. Neither Ms Harbour nor Ms Jeffrey could give specific evidence in this regard, and I found their evidence on this claim somewhat vague. I am not persuaded on the available evidence that it is likely another written direction was given but not produced in these proceedings.

[311] Dr Dwyer gave evidence that in during the period from 15 February he witnessed staff coming in at different times before commencement of shift, at commencement of shift and after commencement of shift. I found Dr Dwyer to be a credible witness and am inclined to accept this evidence. This evidence does not tend to support the Applicant’s case that employees were directed to and required to commencement shift 15 minutes early from 15 February.

[312] Ms Jeffrey made the claim that she thought her pay was docked on one occasion. The Respondent rejected the claim and said there was no policy for this to occur. The claim was not supported by documentary material which could have been produced. On the basis the evidence I am unable to conclude that Ms Jeffrey’s pay was docked.

[313] As was said by Ms Trevascus, it is not uncommon for Industrial Officers at a Union to assist members in the preparation of witness statements for proceedings before the Commission. The Respondent, appropriately in my view, did not suggest any malafides in that respect. However to the extent that the two statements are identical or almost identical in certain respects concerning the claim that they had been directed by the Respondent, prior to 13 May, it tends to weaken the weight that should be attached to that evidence as the statements have been prepared a reasonable time after the actual events took place and the fact of them being identical on critical issues, raises a doubt as to whether they are an accurate recollection, and may instead reflect what the witnesses now believe they recall occurred at the time.

[314] Having considered the evidence, I have concluded that the answer to question 1 is no.

2. Did the Jeta Gardens Enterprise Agreement 2019 apply to the Respondent, Ms Harbour and Ms Jeffrey between the dates of 4 March 2022 and 12 May 2022, for the time from when Ms Harbour and Ms Jeffrey arrived at the facility before their rostered start time, and completed a COVID-19 Rapid Antigen Test, and remained in the testing area until the COVID-19 Rapid Antigen Test result was known, and are Ms Harbour and Ms Jeffrey entitled to be paid for that time?

[315] For similar reasons to those given for why I have determined the answer to question 1 is no, I have not been satisfied that the evidence established that Ms Harbour and Ms Jeffrey were directed to commenced work 15 minutes early to undertake a RAT for the period from 4 March to 12 May, or directed that they must commencement work at a time before their rostered shift commenced.

[316] It is clear from the evidence that from 4 March the Respondent had made a decision to move to a protocol of daily RATs. The evidence in relation to arrangements from 4 March does not specify a particular time that employees were being told they had to report to do the RAT. In the circumstances, the state of the evidence is such that it would be difficult to determine an amount of “work” that would be required to be paid, if the Commission were to be satisfied from the evidence that it could be found that employees had been directed to work before the commencement of their start time.

[317] Besides the change to advise that RATs were to be undertaken daily, the evidence does not support a conclusion that the Respondent’s position had changed as of 4 March such that employees were from that point being directed to undertake a RAT either 15 minutes before commencement of shift, or some other amount of time before the commencement of shift. Other factors that have led me to conclude that the answer to question 1 is no, remained present for the period pertaining to question 2 and for that reason I have concluded that the answer to question 2 must also be no.

3. Did the Jeta Gardens Enterprise Agreement 2019 apply to the Respondent, and its employees who are covered by the Agreement, between the dates of 13 May 2022 and 1 September 2022, for the 15 minute period when those employees were directed by the Respondent to arrive at the facility before their rostered start time, completed a COVID-19 Rapid Antigen Test, and remained in the testing area until the COVID-19 Rapid Antigen Test result was known, and are those employees entitled to be paid for that time?

[318] I agree with the Respondent’s submission that the authorities appear to support the conclusion that in order for a task or duty to be work, it must fall within the coverage of the industrial instrument that applies to the employer and employee. However, I also agree with the ANMF submission that a task or duty does not need to be specifically referenced in an industrial instrument in order for it to be work, covered by the instrument, and applying to the employer and employee.

[319] The evidence of Mr Carter was clear that the OMT had taken a decision to make RATs mandatory from 13 May and for employees to attend designated testing areas as a condition of entry 15 minutes before their rostered shift. I am satisfied that the direction by the Respondent for employees to undertake a RAT prior to entry is to be considered ‘work’. In reference to relevant authorities set out above, it is clear that the direction required employees to be at a certain place, undertaking a certain duty, at a particular point in time.

[320] A direction to comply with an infection control measure is consistent with what would be expected as falling within the role of a nurse or personal carer, and I am satisfied undertaking an infection control measure is consistent with what is contemplated by the classification definitions in the Agreement. It is a duty that is “within the limits of the Employee’s skill, competence and training consistent with the classification structure of this Agreement.”

[321] I do not agree with the Respondent’s submission that undertaking a RAT at the direction of the Respondent is not work because it was not a task or duty identified in writing on commencement, transfer or promotion as referred to clause 10.1(b) of the Agreement. This argument is rejected because I do not accept that the Agreement is intended to be interpreted in a manner that excludes it from applying to any and all duties that are not specifically referred to in the Agreement. I have already concluded that the undertaking of a RAT is an infection control measure which is a duty or task that falls within the coverage of the Agreement.

[322] I also do not accept the Respondent submission that the condition of entry from 13 May to 31 August did not subject the employees to any continual duty to act or any continual command at a workplace or at a time nominated by the Respondent. It is clear the direction required employees to attend 15 minutes before their rostered shift and directed the location they were required to be at that time and included advice that failure to comply with the direction may lead to disciplinary action. I have already rejected the submission that undertaking a RAT is not an activity forming part of the employees’ duties and responsibilities as Personal Carers at the Facility, for the purpose of the Agreement.

[323] The ANMF’s submission that it was the Respondent’s decision to require all staff and visitors to undertake a RAT prior to entering the premises from 13 May to 31 August is correct. The requirement to attend work 15 minutes before rostered commencement time was not imposed by the State or Commonwealth Government, or any other third party.

[324] I accept the Respondent’s submission that by its employees undertaking a RAT there is a public health benefit, however that does not detract from the fact that the manner in which the Respondent decided to meet its obligations under the Work Health and Safety Act 2011 (Qld) does result in the Jeta Gardens Enterprise Agreement 2019 applying to the Respondent, and it’s employees when performing the work of undertaking RAT’s at the specified times from 13 May to 31 August as directed by the Respondent. For the same reason I reject the Respondent’s submissions that employees would not be entitled to payments where they were directed to undertake a RAT 15 minutes before commencement of shift during a COVID-19 outbreak period.

[325] The answer to question 3 is yes.

RECOMMENDATION

[326] The ANMF has pressed for an arbitrated determination that if the Commission finds that a contested period of time is work, that the Commission should also determine that the time must be paid as overtime. I accept that issue is a matter within the ambit of the dispute before the Commission.

[327] As I understand the position of the ANMF it has sought a blanket determination that any of the periods found to be work be paid at overtime rates. The Respondent has raised a number of difficulties with making such a finding including that the two witnesses for the Applicant are part time employees and specific evidence was not led about differing circumstances applying at different periods, such as days that the witnesses have picked up shifts because other staff are absent, or the roster of a part time employee being different to that of a full time or casual employee and no evidence being led by Ms Harbour or Ms Jeffrey about whether they had agreed to come into work 15 minutes early or not, and whether that amounts to a roster change or not.

[328] The Respondent also submitted that there was no evidence led about whether coming in early during the four separate lock down periods would fall within the meaning of clause 24(d) on the basis that it is a roster change based on an emergency.

[329] I am persuaded that it would be unsafe to make a blanket ruling when specific evidence was not led to deal with all of the various circumstances that could impact on the question of whether every 15-minute period between 13 May and 31 August is a period that would attract overtime pay under the Agreement, and I have therefore declined to do so.

[330] However, I am satisfied that it is appropriate, on the state of the evidence to express the opinion that it seems likely the overwhelming majority of the relevant times would attract overtime pay on the basis that they appear to be times that Ms Harbour and Ms Jeffrey were being directed by the Respondent to work “…in excess of the rostered ordinary hours on any day or shift prescribed in clause 20—Ordinary hours of work..”. The evidence does not generally support a conclusion that Ms Harbour and Ms Jeffrey had reached an agreement with the Respondent to commence work 15 minutes early from 13 May to 31 August. As that would at least appear to be the case on the available evidence, the circumstances referred to by the Respondent are more likely to give rise to potential exceptions in my view, if those exceptions apply, and for that reason it is my opinion that barring specific exceptions being identified on a case-by-case basis, the times that I have found are work would attract payment at an overtime rate.

[331] Having received this decision, it is apparent Ms Harbour and Ms Jeffrey would be entitled to be paid for amounts for the period between 13 May and 31 August. I have expressed an opinion that most, if not all of those times would attract overtime pay. I recommend that the ANMF and Respondent identify the specific dates that fall between 13 May and 31 August where it is said by both parties that overtime, or alternatively ordinary time is payable to Ms Harbour and Ms Jeffrey for the 15 minute periods on the dates that were worked within that period, and that the parties confer to attempt to settle the issue between them based on the opinion expressed here.

[332] It would also be sensible for the parties to undertake the same exercise for all other employees who are represented by the ANMF and covered by the Agreement for the same time period, to attempt to settle all claims as it would pertain to those employees.

COMMISSIONER

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Appearances:

Ms Courtney Trevascus, Industrial Officer for the ANMF for the Applicant.

Mr Ben Gee of FCB Workplace Law for the Respondent.

Hearing details:

2022
Brisbane (by Video on Microsoft Teams)
16 September 2022.

 1   Exhibit 1

 2   Exhibit 2

 3   Exhibit 3

 4   Exhibit 4

 5   Exhibit 5