However, in their decision, the Fair Work Commission (FWC) said the workers should have returned to work after the NSW Chief Medical Officer became involved and gave them the all-clear.

FWC Deputy President Geoff Bull rejected a claim by the employer that workers engaged in unlawful industrial action in pursuit of new terms and conditions, including ‘special leave’ and other entitlements relating to the COVID-19 pandemic.

The events of the case

In the dispute, Deputy President Bull heard a worker who tested positive for COVID-19 on 3 April and the employer suspended work for 48 hours and undertook a deep clean of the site.

Two days later, a second worker reported contracting the virus from being in close contact with the first worker outside of the workplace. He was on annual leave at the time and had not attended the workplace while infectious.

That day, a health and safety representative (HSR) issued a cease-work direction under section 85 of the NSW WHS Act, which ran until 11 April. The HSR stated there was a real chance COVID-19 had been spread in the workplace because of its high-contact areas and the close proximity of workers.

The HSR claimed the employer failed to put in place precautionary steps or safe systems of work to prevent the spread of COVID-19, and there was a reasonable concern that workers were exposed to a serious risk “emanating from an immediate or imminent exposure to a hazard, namely COVID-19 contagion”.

Deputy President Bull heard all the workers who ceased work over the five-day stoppage missed a total of 236 shifts.

He heard the work stoppage continued despite a Zoom meeting on 7 April between CFMMEU representatives, WHS committee members and NSW Chief Medical Officer (CMO) Dr Kerry Chant, who advised it was safe for workers to return to work.

The arguments

In the proceedings at hand, the CFMMEU sought FWC orders for the employer to pay workers for all shifts they did not attend, citing the safety-related cease-work policies from their enterprise agreement.

It argued that at the ‘height’ of the pandemic, there was insufficient training, PPE, and social distancing at the site. There were no measures to reduce the risk of workers ignoring symptoms in favour of work and at least one worker had worked while infectious, it claimed.

The HSR told the Commission he was only satisfied it was safe for workers to return after a new COVID-19 safe operating policy was finalised on 10 April, which included:

• Staggered shifts and meal times
• Increased cleaning
• Increased access to PPE and hand sanitiser
• The formation of a COVID committee to monitor and review controls

The employer argued it sought assistance from SafeWork NSW and the State Department of Health after the first worker tested positive, and quickly implemented a number of measures.

Neither the regulator nor Dr Chant raised any concerns with its approach and in light of their views, there could not have been any reasonable imminent safety concerns, it argued.

The decision

Deputy President Bull said that at the time of the cease-work, knowledge of COVID-19 was limited and the general public, including workers, were concerned with the serious health repercussions of contracting the illness. But after arranging for Dr Chant to attend the meeting and the union hearing her views, the HSR and the union should have rescinded the cease-work order, he found.

“While employees and the union were entitled to continue to seek improvement in the existing COVID-19 management at the worksite, a reasonable concern of an imminent, immediate or impending serious risk could no longer be justified following receipt of advice from the 7 April Zoom meeting,” he said.

The Deputy President ordered that wages be paid to the workers from the start of the stoppage up until about the time of the Zoom meeting.

Click here for the detailed decision by the Fair Work Commission.

How we can help

The experienced and qualified team of HSE&W Consultants and Auditors at the Victorian Chamber can advise, review, and audit your COVID related HSE policies, procedures, and practices to ensure your workplaces are as covid safe as they can be.

For more information on this and other HSW support please contact us on 03 8662 5333 or hsw@victorianchamber.com.au to discuss your needs.