Should employers have to pay for RAT testing before shifts?

The recent decision by Commissioner Simpson in Australian Nursing and Midwifery Federation (145V) v Jeta Gardens (QLD) Pty Ltd T/A Jeta Gardens [2022] FWC 3039 (16 November 2022) (‘ANWF V Jeta Gardens’) may have significant implications for employers in the future when considering what constitutes an employee’s payable work time.

Commissioner Simpson essentially held the view that the designated period of 15 minutes that the two employees spent completing Rapid Antigen Tests (RAT) at the facility before the commencement of their rostered shifts (as a condition of entry/evidence that they were COVID-19 free) was payable work time and as such that those employees covered by the Jeta Gardens Enterprise Agreement 2019 were entitled to payment [325].

The intention of the direction for employees to undertake a RAT prior to entry imposed by the employer in this case was to stop the spread of COVID-19 within the nursing home as a control measure in response to a previous outbreak that resulted in 16 deaths. This was acknowledged by Commissioner Simpson who noted that whilst this direction had promoted the health interests of the wider public, it was introduced on the employer’s own volition and not enforced by the relevant State or Federal governments [324].

The employer submitted that the testing did not constitute work as it was not a task defined in the relevant clause 10.1(b) of the organisations agreement (Jeta Gardens Enterprise Agreement 2019) [271]. The employer also submitted that this “condition did not subject the employees to any continual duty to act or any continual command at a workplace or at a time nominated by the Respondent” [208].

However, Commissioner Simpson provided the following relevant points in rejecting the employers’ claims, that he was satisfied that the Respondents direction for employees is ‘considered to be work’ as it required “employees to be at a certain place, undertaking a certain duty, at a particular point in time.”

Additionally, that the duty to comply with an infection control measure was “within the limits of the Employee’s skill, competence and training consistent with the classification structure of this Agreement” and Commissioner Simpson was also satisfied that “A direction to comply with an infection control measure is consistent with what would be expected as falling within the role of a nurse or personal carer, and I am satisfied undertaking an infection control measure is consistent with what is contemplated by the classification definitions in the Agreement. [318] – [320]

In terms of the rate of pay the employees were entitled to for the Rapid Antigen Testing period, the Applicant argued that the work should induce an “blanket determination” of an overtime rate. However, Commissioner Simpson determined that no “blanket determination” could be made, however, he was of the view “that most, if not all the time would attract overtime pay” [331] providing the following reasoning:

“However, I am satisfied that it is appropriate, on the state of the evidence to express the opinion that it seems likely the overwhelming majority of the relevant times would attract overtime pay on the basis that they appear to be times that Ms Harbour and Ms Jeffrey (the employees) were being directed by the Respondent (the employer)  to work “…in excess of the rostered ordinary hours on any day or shift prescribed in clause 20—Ordinary hours of work..”. [330]

If you would like to view a full copy of the decision, click here.

Previously, there was no precedent determination that could be relied upon as an absolute entitlement that provided employees were to receive payment for time spent prior to the commencement of shifts, completing a RAT test. This was viewed in many prior circumstances as an obligatory condition of entry prior to commencing work.

Consequently, employers should consider the following;

• Whether they have similar requirements in operation, if so, have the employees been paid?
• Are they willing to pay employees for time spent completing Rapid Antigen Tests? or
• Should Rapid Antigen Tests be conducted when the employees commence their shift?

If you would like to know more about potential implications concerning payable work time, please contact us at hello@mapien.com.au and a Mapien Workplace Strategist will be in touch within 24 hours.