It’s a good question, and a recent Fair Work Commission decision suggests that the answer may be yes.

In Australian Nursing and Midwifery Federation v Jeta Gardens (QLD) Pty Ltd, the Commission found that an employer was liable to pay staff for on-site RAT testing 15 minutes before each shift.[1] Being in an aged-care, high-risk scenario, the decision is specific to its facts. However, it provides useful insight about how the FWC is handling these scenarios.

Case summary

Commissioner Chris Simpson found that time spent by employees of a Queensland nursing home completing RAT tests before shifts is work, despite being a duty outside the relevant enterprise agreement. He held that duties will only constitute work if they fall within the applicable industrial instrument. However, such duties need not be referred to specifically.

In this case, compulsory RATs were a condition of entry to work, rather than a government or third-party requirement. This contributed to the testing being considered a duty employees needed to perform at a specified place and time.

The Commissioner did not decide that the additional 15 minutes for RAT testing would always be overtime for Jeta Gardens’s employees. However, because the employer required the testing outside of ordinary rostered hours, he was satisfied that overtime rates applied in this case. Further, he suggested that it was likely that overtime would apply in the “overwhelming majority” of cases for Jeta Gardens’s employees.

What should you do now?

Against the backdrop of this decision, with government isolation requirements scrapped and COVID-19 cases surging, it is important to revise your COVID policies now. When doing so, make sure you address issues like who pays for the RAT test itself and how you will treat time taken for testing.

In preparing these sorts of policies, we suggest the following:

  • Do a risk assessment of your workplace.
  • Consult with your workforce on their views, engage in genuine consideration of those views and develop your policy in response.
  • Decide on and implement a policy.
  • Consider RATs and masks as akin to PPE and provide them for your workforce at your own cost.

Please contact our team if you would like our help developing a COVID policy or would like us to review one.

[1] [2022] FWC 3039