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Labour laws protect the rights of Australian workers to say "No" to COVID risks in the workplace

18th January, 2022

An edited version of this post was published on 18 January 2022 in The Age & Sydney Morning Herald:

This summer’s Omicron surge has led to the relaxation of COVID restrictions by federal and state governments that are seeing Australian workers exposed to danger at work on a scale like never before.

Workers in many essential sectors are being pressured to return to work in circumstances that, previously, were considered highly likely to lead to transmission of coronavirus.

Unions are now rightly stating: if governments won’t protect workers (including as a result of the Coalition Government’s failure to ensure sufficient supply of rapid antigen tests), then the collective voice and power of workers will be deployed.

Labour laws protect the rights of workers to take a strong stand in defence of healthy and safe working conditions, for example the model Work Health and Safety legislation in place in most jurisdictions (and equivalent provisions in Victorian OHS law):

  • provide that “a worker may cease, or refuse to carry out, work if the worker has a reasonable concern that [it] would expose the worker to a serious risk to [their] health or safety, emanating from an immediate or imminent exposure to a hazard” (section 84)
  • empower work health and safety representatives to direct the cessation of unsafe work based on “a reasonable concern that to carry out the work would expose [workers] to a serious risk to the worker’s health or safety, emanating from an immediate or imminent exposure to a hazard” (section 85(1))
  • enable the above action to be taken without consultation with management or attempting to resolve the issue under the legislation where “the risk is so serious and immediate or imminent that it is not reasonable to consult before giving the direction” to stop work (section 85(3)).

In addition, under the Fair Work Act, work stoppages or bans on the performance of work are not considered to be “industrial action” – and therefore are not susceptible to court or tribunal orders sought by employers to end such action – where:

  • the action by employees “was based on a reasonable concern … about an imminent risk to his or her health and safety” (and employees have not unreasonably failed to comply with a direction to perform other safe and appropriate work) (section 19(2)(c)).

Since the pandemic began, unions have stepped in to resist failures by businesses to ensure safe working conditions at workplaces including industrial laundries, warehouses/distribution centres, wharves, call centres, aircraft/airports and in many other settings. They have done this by successfully utilising some or a combination of the above legal provisons.

Employer representatives responded to yesterday’s indication that work stoppages may be necessary to protect workers from being the fodder to resolve the health and supply chain crisis, by claiming that unions just don’t understand the difficulties businesses face with chronic staff shortages due to COVID cases mutiplying.

Well, employers need to understand that there is nothing quite so difficult as fronting up every day in a low-paid job and exposing yourself to the risk of a deadly disease. 

Labour laws protect the fundamental rights of workers to say “no thanks”! 

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