Thinking | 2 February 2022

Threat of industrial action over work health and safety risks from Omicron variant

By Fay Calderone 

In an interview with ABC RN Breakfast, Australian Council of Trade Unions (ACTU) Secretary Sally McManus confirmed that unions might organise the stoppage of work if workers are forced to attend the workplace while COVID-positive or are not provided with free N95 or P2 masks and rapid antigen tests (RATs) by their employers.

McManus said the ACTU had written to employers outlining their obligations under work health and safety (WHS) laws to perform a new workplace risk assessment due to the proliferation of the highly infectious Omicron variant. As part of that assessment, the ACTU suggested the following ‘reasonably practicable’ measures employers should take to meet their WHS obligations:

  • providing upgraded masks to workers, such as N95 or P2 masks;
  • ensuring adequate ventilation in the workplace; and
  • providing free RATs to workers to ensure they do not come to work when COVID-positive.

With many businesses struggling to survive due to workforce shortages and significant supply chain disruptions, employers may not be in a position to provide free masks and RATs for workers. We have considered the potential consequences for employers if their workers respond with strikes, work bans or stoppages of work.

The meaning of industrial action

Section 19(1) of the Fair Work Act 2009 (Cth) (FW Act) provides that ‘industrial action’ means action of any of the following kinds:

  • the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
  • a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
  • a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work; or
  • the lockout of employees from their employment by the employer of the employees.

While strikes, work bans or stoppages of work are clearly types of action captured by the above definition, importantly, there is an exemption under section 19(2)(c) of the FW Act regarding action that is based on a reasonable concern of the employee about an imminent risk to their health or safety, provided that the employee did not unreasonably fail to comply with a direction of their employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

If these requirements are satisfied, the employee is protected from adverse action (up to and including dismissal) under the general protections provisions of the FW Act, which prevent an employer from taking adverse action against an employee who has exercised a workplace right or made a complaint or inquiry in relation to their employment under a workplace law.

Breaches of the general protections provisions attract penalties for the employer and individuals involved in the contravention under section 550 of the FW Act.

Does Omicron pose a reasonable concern about an imminent risk to health and safety?

Employers will need to assess whether, as a result of the spread of the Omicron variant, the employee will have a ‘reasonable concern’ about an ‘imminent risk to health and safety’ in their particular workplace.

The Fair Work Commission (FWC) has considered the meaning of ‘reasonable concern’ and ‘imminent risk to health and safety’ for the purposes of the exemption on a number of occasions. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v LCE Queensland Pty Ltd [2013] FWC 2014, Senior Deputy President Richards determined that to fall within the health and safety exemption, the following issues must be considered:

  • Was there a genuine safety concern?
  • Was the concern reasonably founded?
  • Was the risk an imminent risk?
  • Was the response of the workforce proportionate to the reasonable concerns it held?

In Hansen Yuncken Pty Ltd and Ors v Deegan and Ors [2013] FWC 7505, Senior Deputy President O’Callaghan identified additional questions for employers to consider:

  • How seriously did the facts threaten health and safety?
  • What efforts have been made in the past by the employer to eliminate those facts?
  • What responses have the workers made to such efforts?
  • Is the issue genuine or is it a pretext to further a less worthy objective?
  • What other methods, if any, were available to the workers to achieve their purposes?
  • Have other methods been tried?
  • What proportion was there between the seriousness of any threat to the health and safety of the workers and the extent of the damage likely to be suffered by the workers?

The assessment of ‘genuine safety concern’ is subjective and based on what the workers knew at the time. Media reporting of Omicron has identified that the variant is between two to four times more infectious than the Delta variant, hitting record case numbers in Australia, and may cause serious illness or death. New variants are emerging which are considered to be potentially even more infectious. Workers may also be aware of a more specific safety concern in the workplace, such as a colleague being infected with Omicron or being identified as a close contact of an infected person.

Employers must then consider whether the workers’ concern is ‘reasonably founded’, an objective assessment based on the reasonable person test.

To satisfy the health and safety exemption, the risk to health and safety must be imminent. The Macquarie Dictionary Online defines the word ‘imminent’ to mean ‘likely to occur at any moment’. This will require consideration of the probability of the risk arising in the particular workplace. A worker in an intensive care unit who is caring for an Omicron patient is far more likely to contract the virus at work than a worker who teaches outdoor fitness classes.

If an employer takes steps to minimise the risk of Omicron including mandated vaccinations, appropriate social distancing, mask wearing, ventilation and testing, workers may not be able to successfully argue that a strike, work ban or stoppage of work is a proportionate response to the reasonable concerns they hold.

Workers must also follow applicable dispute resolution processes and attempt to resolve health and safety issues before taking steps to withdraw their labour. This goes to the FWC’s assessment of ‘reasonableness’ and ‘proportionality’ of the workers’ response, and what methods were available to workers to achieve their purposes.

What if the action taken by workers is not covered by the health and safety exemption?

If the action is not covered by the health and safety exemption, it will fall under the definition of ‘industrial action’.

Employers have an obligation under section 474 of the FW Act not to pay workers during any period of protected or unprotected industrial action. Where that action has a duration of fewer than four hours, workers must not be paid for a period of four hours. Where the action has a duration of more than four hours, workers must not be paid for the duration of the industrial action on that day.

Where an employer fails to comply with this provision and pays their workers during industrial action, they will be exposed to penalties under section 550 of the FW Act.

What can employers do to minimise the risks of industrial action?

We encourage employers to collaborate with workers to perform a risk assessment of the workplace and identify what steps are reasonably practicable for the employer to take to minimise risks to health and safety, given current constraints. For example, while RATs are unavailable or prohibitively expensive, there may be an argument that it is not reasonably practicable for the employer to provide free RATs to workers. It is important that employers communicate clearly and openly, and explain to workers why certain steps are not practicable in the circumstances.

Given the risks and complexities of this area of law legal advice on specific circumstances is recommended if employees threaten a strike, work ban or stoppage of work based on a reasonable concern of the employee about an imminent risk to their health or safety.

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