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Landmark Ruling: Compensation for Pre-Shift COVID-19 Testing Time Mandatory

In an unprecedented ruling that redefines employment norms, the Fair Work Commission (FWC) ruled that Jeta Gardens (QLD) Pty Ltd, a nursing home implicated in one of Queensland’s deadliest COVID-19 waves, should compensate its employees for the time spent undergoing rapid antigen tests before the beginning of their shifts.

Jeta Gardens defended that the testing time shouldn’t be deemed work as it didn’t fall under the purview of their agreement’s clause 10.1(b). However, Commissioner Chris Simpson saw it differently.

The Commissioner rebutted, stating that the interpretation of the agreement shouldn’t exclude any duties not explicitly stated within. The agreement, according to him, should cover all responsibilities, whether specifically mentioned or not.

Following an outbreak resulting in 16 fatalities, Jeta Gardens mandated Rapid Antigen Tests (RATs) from May 13, with employees required to report to specific testing locations 15 minutes before their shifts. Commissioner Simpson noted that this directive, being a condition of entry, should be viewed as ‘work’ as it necessitated the employees’ presence at a specific place and time.

The Commissioner opined that adherence to infection control measures aligns with the expectations of a nurse or personal carer’s role, and is consistent with the agreement’s classification definitions.

In response to Jeta Gardens’ claim that the pre-shift testing didn’t impose a continuous duty or command, Commissioner Simpson stated that the direction clearly required employees to arrive 15 minutes before their shift, with potential disciplinary action for non-compliance.

While acknowledging that the testing served a public health purpose, Commissioner Simpson emphasized that the mandate was solely Jeta Gardens’ responsibility, independent of State or federal government directives.

The Commissioner refrained from issuing a universal ruling that the extra 15 minutes should always be paid as overtime. The circumstances could vary, such as when employees picked up extra shifts due to staff shortages.

However, he acknowledged that the majority of such instances would likely warrant overtime pay, as employees were directed to work beyond their rostered ordinary hours.

Commissioner Simpson urged the Australian Nursing and Midwifery Federation (ANMF) and Jeta Gardens to resolve the issues concerning the two carers who testified. He also encouraged a similar review for all employees represented by the ANMF during the same period, to resolve any pending claims.

A comparable case involving the Wongaburra Nursing Home saw Commissioner Simpson questioning the basis for the ANMF’s demand for payment for RATs at shift starts. However, the dispute was subsequently resolved in favor of the ANMF, with the employer committing to compensate the nursing staff for each unpaid RAT test by October 19, 2022.

Despite initial discrepancies, the employer has now fully compensated the employees, including penalties and superannuation, following further negotiations. The ANMF is keen on extending this outcome to all their aged care members, with two more disputes currently under FWC review.

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