Managing workers' safety concerns in the era of COVID-19

In brief 2 min read

Employers must take all steps reasonably practicable to eliminate or minimise the risk of COVID-19 exposure and provide a safe work environment. Employees can refuse to work if there is an immediate threat to their health and safety.

In one notable case, Spotless sought to use anti-strike orders to deal with workers who refused to attend work due to COVID-19 safety concerns.

Key takeaways

• Workers have the right to refuse to carry out or stop work if they have a reasonable concern that they will be exposed to a serious risk to their health and safety from an immediate or imminent threat, such as COVID-19.
• To minimise the risk of employees stopping or refusing to attend work during COVID-19, employers should implement a comprehensive COVID-19 risk management and response plan, communicate regularly and transparently with employees, and promptly address any safety concerns they raise.
• Employers have a range of options if employees refuse to attend work where there is no immediate threat to their health and safety. In certain circumstances, this might include seeking orders to stop industrial action.

Background

Workers at a Spotless industrial laundry site in Melbourne refused to attend work after two employees tested positive to COVID-19.

Spotless executed its COVIDSafe risk management plan when notified of the first positive test, including:

• a deep clean of the facility;
• contact tracing;
• self-isolation and testing for employees identified as 'casual contacts'; and
• testing.

However, approximately 35 workers refused to work, citing ongoing safety concerns. The United Workers Union demanded that all workers be stood down with pay to self-isolate and encouraged employees not to attend work.

In response, Spotless sought to compel the workers to attend work by applying for orders to 'stop industrial action' under section 418 of the Fair Work Act 2009 (Cth). Spotless argued that it had a comprehensive plan in place to minimise the risk of COVID-19 exposure at the facility, and there was no immediate or imminent threat to the employees' safety. It alleged that, by refusing to work, the employees were engaged in unprotected industrial action.

Outcome

Anti-strike orders in the context of COVID-19 appear yet to be fully tested.

The matter resolved during discussions in the Fair Work Commission, with both parties agreeing to a site visit by health authorities to assess the range of COVID-19 safety measures Spotless had implemented at the facility.