Employer taking staff to FWC ‘an unusual move’

By Adrian Flores|06 August 2020
Kayte Lewis

The taking of one’s employees to the Fair Work Commission – as one Melbourne laundry facility has done, could have implications for workplace safety during the COVID-19 pandemic, according to an employment lawyer.

In late July, an employee of a Melbourne laundry facility, owned by Spotless Services, had worked the 24th and 25th of that month before subsequently testing positive for COVID-19.

Spotless then took staff to the Fair Work Commission after around 35 employees refused to come to work after the COVID-19 case had become known.

Speaking to Lawyers Weekly’s sister brand MyBusiness about the case, The Voice Lawyers managing director Kayte Lewis said COVID-19 is certainly presenting some unforeseen challenges in the workplace, and Spotless would not be the only employer having issues where employees are refusing to return to work.

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“It is an unusual move to have an employer take their staff to the Fair Work Commission, and we don’t often see this. However, the Fair Work Act provides reciprocal rights and protections for both employees and employers,” Ms Lewis said.

“The employment relationship is a relationship involving mutual trust and confidence.”

Provisions are currently in place in Victoria for employees to take two weeks’ pandemic leave, whereby if an employee doesn’t have sick leave or other leave and has to self-isolate, they can take 14 days of unpaid pandemic leave.

While Ms Lewis said employers need to provide a safe workplace, and this includes a place that is both physically and mentally safe, she also noted that this can be a subjective test.

“During COVID, employees have been able to work from home where it is reasonably possible to do so. However, employers can ask staff to come back to the workplace and implement safety measures and strict protocols,” she said.

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“This has proved difficult for some workplaces which have been unable to provide social distancing. Many workplaces have implemented, for example, A and B teams sharing the space on a week on, week off basis, other flexible structures or making physical modifications to their workspaces.

“Being cleaners, of course, work can’t be done away from the workplace, and at this time, they provide an essential service protecting the public from COVID-19, so it will be interesting to watch and see what the Fair Work Commission decides.”

This story originally appeared on Lawyers Weekly’s sister brand, MyBusiness.

Employer taking staff to FWC ‘an unusual move’
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