Strikes remain an option if workplaces are unsafe

ACTU secretary Sally McManus doesn’t want strikes. 

But she does want employees – and governments – to know that withdrawing labour remains a live option if more isn’t done for worker safety during the most transmissible phase of the COVID-19 pandemic.

“We’re not wanting (strikes). We’re just telling people what their rights are,” Ms McManus said after a crisis meeting of unions on Monday. “It’s simply the fact that workers have a right to cease work if there’s imminent danger to their health. 

“Where employers do not fulfil their obligations, the union movement is determined to do everything within its power to ensure the safety of workers and the community.

“This may include ceasing work or banning unsafe practices.”

The law backs her up. WorkSafe Victoria states that employees have the right to refuse to work in unsafe conditions. More than that, they have a duty to take reasonable care of their own health and safety in the workplace and take reasonable care of the health and safety of others in the workplace.

Anthony Forsyth, a Distinguished Professor in the Graduate School of Business and Law, RMIT University, says “the exercise by workers of their legal rights to refuse to perform unsafe work is legitimate…” and the relaxation of COVID restrictions by federal and state governments has led to Australian workers “being exposed to health risks at work on a scale like never before”.

“Union leaders 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.”

In South Australia, strike action is possible after the state government rejected Union requests for school holidays to be extended by two weeks so COVID-19 safety concerns could be properly addressed, as has occurred in Queensland. The SA government has planned a “staggered” return to school, with some students in the classroom and some learning from home for the first two weeks of term. Strike action is planned for the scheduled first day of school, February 2.

The South Australian IEU Secretary Glen Seidl says the staggered start to Term 1 is a wasted opportunity to increase vaccination levels of students; wait for an expected peak of Omicron infections to subside; and negotiate workable protocols for the health and safety of school communities.

He says it is either safe to re-start school for all students or no students.

Professor Forsyth says recent changes made by the federal government, including redefining “close contacts”, shortening the isolation period for close contacts of COVID cases from 14 to seven days and allowing close contacts to return to work with no isolation period mean that many workers are being “pressured to resume work in circumstances that, previously, were considered highly likely to lead to transmission of the virus”.

Victorian OHS law provides 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”.

Furthermore, under the Fair Work Act, “work stoppages or bans on the performance of work are not considered to be ‘industrial action’”. That means employers cannot stop them via court or tribunal orders if the actions are “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).

Prof. Forsyth says even in a health and supply chain crisis, “businesses have a legal duty to ensure the health and safety of their workers (so far as is reasonably practicable)”.

“And our laws enable workers to say ‘no’ if they are required to work in situations that endanger their health.”

With infections at record levels, hospitalisations overwhelming a depleted health workforce, upwards of one million Australians isolating due to COVID exposures, and less than twenty per cent of children aged 5-12 vaccinated, the union movement has called for governments to re-address the shortage of Rapid Antigen Tests and employers to undertake a new risk assessment for Omicron in consultation with workers and their health and safety representatives.

“For workplaces where working from home is not an option, the provision of free RATs by employers to all workers will be necessary once supply is resolved, alongside upgraded masks and improved ventilation.”

Ms McManus criticised the federal government for not making rapid antigen tests free for all.

“This is the number one tool working people and people in the community need to keep ourselves and each other safe and to limit the spread (of the virus),” she said.

“Employers are also likely to need to upgrade masks, N95 or P2 masks and improve ventilation. This is absolutely essential.”

The ACTU condemned the “let it rip” approach to the pandemic, saying Australia now has one of the highest per capita infection rates in the world, and workers feel “exhausted and abandoned”.