Staff could walk out on the job unless they get RATs free of charge

Unions are threatening to walk off the job unless employers give out elusive rapid antigen tests (RATs) free of charge — but with shortages predicted ’til February, a stalemate could see Australia’s already-choked supply chains placed under greater strain.

The Australian Council of Trade Unions (ACTU) secretary Sally McManus has vowed to write to all employers following a crisis meeting of union leaders on Monday.

McManus says employers should offer free RATs (if employees cannot feasibly work from home), better masks — like the N95 or P2 masks — and better ventilation to keep staff safe at work.

“Unions will not hesitate to do whatever action is necessary to keep workers safe,” McManus continued. “This will include, if employers do not respond, stopping work.”

So what are your legal rights and obligations if your staff do choose to strike? Two legal experts weigh in.

Is it legal for staff to strike?

Under the Fair Work Act, workers can legally stop work if they feel there’s a threat to their health and safety, according to employment lawyer Andrew Jewell, principal at Jewell Hancock.

“The Fair Work Act states that action ‘…based on a reasonable concern of the employee about an imminent risk to his or her health or safety…’ is not industrial action and therefore is not governed or limited by the Fair Work Act,” he says.

“This means that the Fair Work Commission cannot stop an employee or group of employees walking from the job due to reasonable health and safety concerns.”

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But it’s the sort of thing that will be assessed on a case-by-case basis, says Hall & Wilcox partner Fay Calderone, if the unions make good on their threat and strike.

“I expect it will be a larger employer that will seek to challenge — with small business watching on the sidelines,” she says.

What does an employer need to know?

First things first — you can’t penalise staff for walking off the job. Jewell says you can actually run into legal strife if you dole out consequences to employees who strike.

“An employer cannot take adverse action against an employee (or group of employees) for exercising their right to a safe working environment,” Jewell says.

And you can’t mislead employees about their rights either, he continues, “so it is not advisable to make threats about striking over safety concerns”.

Jewell says the most important thing for employers to consider is payroll — you’re not under any obligation to pay staff while they strike, he advises, which would be considered a “leave of absence”.

“Employers do not need to pay employees when they choose to be absent unless there is a permitted form of leave, such as sick leave,” he says.

What might happen next?

Calderone says it’s another difficult issue that businesses could face, “particularly for struggling small businesses to navigate, who are already managing outbreaks and workforce shortages”.

“Aside from current supply issues, it seems government intervention is warranted to provide or subsidise rapid antigen tests and upgraded masks, even if it means-tested for individual businesses,” she says.

Now, it seems, it’s a matter of when. Last week, the Commonwealth announced $62 million worth of orders for the tests under the “extreme urgency and unforeseen circumstances” provision of purchasing rules, though a large chunk is going to close contacts and people who need tests to work.

For everyone else, the short supply of RATs is expected to be a problem until mid-February, when Sigma Healthcare (the country’s largest pharmacy distributor) promised they’ll be distributing tens of millions of tests to pharmacies.

Until then, the Australian Competition and Consumer Commission (ACCC), along with the federal police, are keeping a close eye on price gouging, which is now illegal under new laws that prevent a profit margin on RATs exceeding 20%.

The ACCC says they’ve seen prices of up to $70 per RAT on the market.