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COVID-19 not a valid reason to refuse union entry

FWC has ruled that COVID-19 based restrictions was not a valid reason.
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COVID-19 not a valid reason to refuse union entry

COVID-19 not a valid reason to refuse union entry

9 October 2020

By Mike Toten

The current Victorian state of emergency with its COVID-19 based restrictions on movement and entry were not a valid reason for an employer to prevent a union gaining entry to a workplace to investigate employees’ concerns it was not taking its COVID-19 health and safety obligations seriously enough, the Fair Work Commission has ruled. However, the FWC also warned both parties to adopt a more cooperative approach to handling the situation.


Facts of case

The union received complaints from employees at a pizza manufacturing and distribution company that the employer was not taking enough measures to prevent the potential spread of COVID-19. The union sought permission three times to enter the workplace to investigate the complaints, but the employer refused on the ground that health-related restrictions at the time prevented it from agreeing to the requests. Union officials did attend the work site once after intervention from WorkSafe Victoria, but the employer restricted the areas they were allowed to enter.

The employees’ concerns included the following claims:
  • That the employer did not upgrade its cleaning schedule to include frequently-touched surfaces, including in washrooms and the canteen
  • It failed to implement adequate social distancing measures
  • It did not provide enough masks, gloves, hand sanitiser or cleaning products.

The union claimed that these were all legitimate health and safety concerns, and the Victorian COVID-19 health rules still permitted unions to enter workplaces. It also claimed that it was trying to minimise work site visits, encouraged “remote” meetings where feasible, and required its officials to follow some COVID-19 health rules when they did so. When it asked to see the employer’s COVID-safe plan, the employer replied that it did not have one but it complied with all government requirements.

The employer sought orders from the FWC suspending or restricting the union’s right to enter its premises, the latter requiring it to contact the employer in advance and consult with the FWC before applying for entry. It claimed that it had closed the premises to all visitors, denied that there were any health and safety problems, and claimed that the union had not complied with its health and safety requirements and was merely engaging in a “show of force”.


Decision

The FWC dismissed the employer’s application for orders and declined to restrict the union’s entry rights. It found no evidence the union had breached any reasonable health and safety requests issued by the employer. A blanket “no entry” directive was unreasonable, even in the current environment dominated by COVID-19 concerns.

However, it recommended that the parties observe the following procedure in future:
  • The union contacts the employer regarding any complaints/concerns it receives and asks it to investigate and (if necessary) fix any suspected contraventions BEFORE it seeks entry to the workplace.
  • The employer responds by promptly investigating the issues raised, reporting back to the union, and taking remedial action if necessary.

The union had claimed that this approach would allow the employer to cover up problems, but the FWC responded that attempts to so would soon become obvious, and the union had active members on-site who would willingly communicate with it.

Noting that there was currently a low level of trust between the parties, the FWC suggested that COVID-19 provided an opportunity for them to develop a more cooperative approach to health and safety issues.

The bottom line: It appears that using COVID-19 concerns as an excuse to prevent union workplace visits and inspections will seldom be permitted, unless there is “compelling justification, supported by evidence”.


Read the judgment

Bervar Pty Ltd t/a Della Rosa Fresh Food v United Workers’ Union [2020] FWC 4501, 24 September 2020

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