Australian Nursing and Midwifery Federation v Jeta Gardens (QLD) P/L t/a Jeta Gardens ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – hours of work – overtime – rapid antigen tests – s.739 Fair Work Act 2009 – Australian Nursing and Midwifery Federation (ANMF) filed application for Commission to deal with dispute regarding Jeta Gardens Enterprise Agreement 2019 – respondent delivers services in retirement living, home care and aged care in Queensland – Agreement covers nurses and personal carers – ANMF submitted that respondent issued a direction on 15 February 2022 that staff were to attend work at least 15 minutes before start time of their shift to allow them to do a rapid antigen test before starting work – dispute relates to whether, during period from 15 February to 31 August 2022, employees were entitled to be paid for time spent taking rapid antigen tests – 2 employees claim they were verbally directed to do tests before their shifts – respondent submitted that from 15 February to 3 March 2022, they informed staff in writing that they ‘should’ do a test each work day and made test kits available, but did not ‘direct’ staff to do a test before each shift, did not direct staff to attend the workplace 15 minutes before their shift, and did not dock the pay of any staff who arrived less than 15 minutes before their shift – Commission accepted respondent’s evidence that it did not authorise staff to be given a direction that they must take a test from 15 February or that they must be at work 15 minutes before their start time – Commission considered it more likely that respondent was operating on basis that from 15 February, staff were prepared to arrive earlier than their rostered start time to take a test, without being given a formal direction – Commission accepted that the 2 employees held a belief that from 15 February, they were required to take a test before their shift started – Commission acknowledged it was possible that a supervisor may have told employees they were required to take tests as claimed by the 2 employees, but if a supervisor did so, the evidence supports the conclusion that such a direction was contrary to respondent’s position and not authorised by respondent – respondent submitted that from 4 March to 12 May, respondent did direct staff to perform a test at the start of each shift or work day but did not direct staff to attend at least 15 minutes before their shift and did not dock pay if staff arrived less than 15 minutes before their shift – Commission not satisfied that evidence established that the 2 employees were directed to commence work 15 minutes early to take a test from 4 March to 12 May – respondent submitted that from 13 May to 31 August, respondent directed staff to attend a testing area at least 15 minutes before rostered start time and a negative test was a condition of entry to workplace, but pay was not docked if staff arrived less than 15 minutes before rostered start time – respondent argued that no employee was entitled to be paid for taking a test before their rostered start time because taking a test was not ‘work’ for the purposes of the Agreement as it was not a ‘substantive activity forming an essential aspect’ of their duties as personal carers – Commission was satisfied that respondent’s direction to take a test prior to entering workplace was to be considered ‘work’ – it is clear that the direction requires employees to be at a certain place, undertaking a certain duty, at a particular point in time – Commission held that 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 is consistent with what is contemplated by the classification definitions in the Agreement – Commission accepted ANMF’s submission that the requirement to attend work 15 minutes before rostered start time was not imposed by government or any other third party – respondent submitted that its testing arrangements were consistent with Commonwealth and State public health guidelines and that its practices were public health activities in line with mutual and individual responsibilities of staff and respondent in accordance with Work Health and Safety Act 2011 (Qld) – Commission accepted that staff taking tests resulted in a public health benefit, but that did not detract from the fact that the Agreement applied to respondent and its employees when they performed the work of taking rapid antigen tests at the specified times from 13 May to 31 August as directed by respondent – ANMF sought an arbitrated determination that the time spent taking tests must be paid as overtime – Commission decided that it would be unsafe to make a blanket ruling when specific evidence had not been led to deal with various circumstances that could impact on question of whether every 15-minute period between 13 May to 31 August was a period that would attract overtime pay under the Agreement – however Commission expressed an opinion that ‘it seems likely the overwhelming majority of the relevant time would attract overtime pay’ – Commission observed that it would be sensible for the parties to attempt to settle all claims pertaining to all employees covered by the Agreement between 13 May and 31 August. C2022/3966 [2022] FWC 3039 Simpson C Brisbane 16 November 2022
