Stand downs under the Fair Work Act including during Covid19

The circumstances in which an employer may stand down employees under the Fair Work Act due to a stoppage of work “for which the employer cannot reasonably be held responsible” was the subject of a recent decision of the Fair Work Commission involving a private school.

Here is an extract from the decision which explains the law.

“524 Employer may stand down employees in certain circumstances

(1) An employer may, under this subsection, stand down an employee during a period in which the employee cannot usefully be employed because of one of the following circumstances:

(a) industrial action (other than industrial action organised or engaged in by the employer);

(b) a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown;

(c) a stoppage of work for any cause for which the employer cannot reasonably be held responsible.

(2) However, an employer may not stand down an employee under subsection (a) during a period in which the employee cannot usefully be employed because of a circumstance referred to in that subsection if:

(a) an enterprise agreement, or a contract of employment, applies to the employer and the employee; and

(b) the agreement or contract provides for the employer to stand down the employee during that period if the employee cannot usefully be employed during that period because of that circumstance.

Note 1: If an employer may not stand down an employee under subsection (a), the employer may be able to stand down the employee in accordance with the enterprise agreement or the contract of employment.

Note 2: An enterprise agreement or a contract of employment may also include terms that impose additional requirements that an employer must meet before standing down an employee (for example requirements relating to consultation or notice).

(3) If an employer stands down an employee during a period under subsection (a), the employer is not required to make payments to the employee for that period.

[15] Section 526 of the FW Act allows the Commission to deal with a dispute in relation to such matters. Section 526 states as follows:

526 FWC may deal with a dispute about the operation of this Part

(1) The FWC may deal with a dispute about the operation of this Part.

(2) The FWC may deal with the dispute by arbitration.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(3) The FWC may deal with the dispute only on application by any of the following:

(a) an employee who has been, or is going to be, stood down under subsection 524(1) (or purportedly under subsection 524(1));

(b) an employee in relation to whom the following requirements are satisfied:

(i) the employee has made a request to take leave to avoid being stood down under subsection 524(1) (or purportedly under subsection 524(1));

(ii) the employee’s employer has authorised the leave;

(a) an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (a) or (b);

(b) an inspector.

(4) In dealing with the dispute, the FWC must take into account fairness between the parties concerned.

……………………………………………THE ISSUES

 

[29] In Stelzer v The Trustee for The Ideal Acrylics Unit Trust T/A Ideal Acrylics[4] (Stelzer) Deputy President Anderson stated that there were two jurisdictional facts that had to be satisfied for a stand down to be consistent with the provisions of s.524 of the FW Act. These are that an employee could not be usefully employed and that this was because of a stoppage of work for which the employer could not reasonably be held responsible.[5]

[30] The casual relationship between the stoppage and stand down was succinctly expressed in Australian Federation of Air Pilots v Bristow Helicopters Australia Pty Ltd[6] (Bristow Helicopters) where Commissioner Cambridge said:

[53] …the mere existence of a stoppage of work for which the employer cannot reasonably be held responsible, is not sufficient to establish the circumstances which satisfy subsection 524 (1) of the Act. There must be a direct causal connection between …the stoppage of work, and the absence of useful work for the employee who is stood down. Thus, the absence of useful work created by a breakdown of machinery or equipment and/or a stoppage of work must be the cause of any stand down.

[emphasis in original]

 

[31] This was affirmed on appeal by the Full Bench in Bristow Helicopters v Australian Federation of Air Pilots.[7]

[32] The first matter to be determined therefore is if there has been a stoppage of work and, if there has, if this is for any cause beyond the reasonable control of the employer. This much is clear from the wording of s.524(1) of the FW Act. A consideration of whether an employee can be usefully employed can only be considered if the circumstances in ss.524(1) (a), (b) or (c) exist. That is, the first consideration is not if there is any useful work for the employee.

[33] This approach was adopted by Deputy President Lake in Marson v Coral Princess Cruises (N.Q.) Pty Ltd T/A Coral Expeditions[8] (Coral Princess Cruises) where the Deputy President said:

[14] Where that cessation of trade is outside the control of the employer that will satisfy s 524(1)(c). Any question relating to whether a particular employee, or specific unit of the business can be stood down, is one that should be properly considered in relation to whether the employee can be usefully employed, not whether there has been a stoppage.

 

[34] I do not consider the approach I have adopted to be contrary to the decision in Coal & Allied Mining Services Pty Ltd v MacPherson.[9] In that decision Marshall and Cowdrey JJ said that:

Properly understood, a stand down, in that context, encompasses a large range of situations where, for various reasons, an employer is unable to provide useful work for its employees, for a particular period of time, for circumstances beyond its control. The employer may be temporarily deprived of electricity to run its operation. It may not have sufficient component supplies to manufacture its goods, due to industrial disputation by the employees of its suppliers. The employer’s factory may have been flooded. Numerous examples readily come to mind. The need for clauses in industrial instruments dealing with stand downs of this type has long been recognised because, in the absence of such a provision, an employee is prima facie entitled to wages for attending work even if no work is available: see Vehicle Builders Employees Federation of Australia v British Motor Corporation (Aust) Pty Ltd (1966) 8 FLR 70 at 74-75.[10]

 

[35] In that passage their Honours posit the various possible reasons for a closure and that it must be for this reason that the employer cannot usefully employ the employee. I do not accept that this passage supports an approach where “the focus is on whether there is a stoppage of the work of the employee stood down.”[11]

[36] To only consider the work performed by the employees stood down would not be to properly consider if there has been a stoppage of work for which the employer cannot be reasonably held responsible before considering if the employee concerned can be usefully employed because of that stoppage.

[37] In summary, the decision-making process in dealing with a dispute under s.526 of the FW Act is clear once the provisions of s.524 are properly understood. The first question the Commission must ask itself (in dealing with the current dispute) is if there was a stoppage of work. If the answer is no, no further enquiry is necessary. Without a stoppage of work no stand down under s.524 is possible. If the answer is yes, the next question is if the cause of the stoppage was for a reason for which the employer could not reasonably be held responsible. Again, if the answer is no (that is, the employer could be reasonably held responsible for the stoppage) then the inquiry ends. If the answer is yes, the third inquiry is whether the employee could be usefully employed because of that stoppage. Of course, in dealing with the dispute the provisions of s.526 of the FW Act, including fairness as expressed in s.526(4) must be taken into account.

HAS THERE BEEN A STOPPAGE OF WORK?

 

[38] In City of Wanneroo v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union-Western Australian Branch[12] the meaning of “stoppage” was considered and defined as:

[30] The Macquarie Dictionary Online 2008 relevantly defines “stoppage ” as:

  1. the act of stopping; cessation of activity, etc. ….
  2. a cessation of work as a protest; strike: a twenty-four hour stoppage.

 

[39] Whilst this was in the context of industrial action it remains apposite to the matter before me.

[40] In Bristow Helicopters Commissioner Cambridge said that “[t]he circumstances contemplated by subsection 524(1)(c) of the Act would require identification of some event which involved work being consciously halted for some reason and ordinarily for some identified period of time.”[13] [Underlining added]

[41] In Coral Princess Cruises Deputy President Lake concluded that an event such as COVID-19 came within the ambit of s.524(1) of the FW Act. That is, it is an event for which the employer could not reasonably be held responsible.

[42] I am satisfied that COVID-19 is the type of event contemplated by s.524(1)(c) of the FW Act. This however does not answer the question as to whether there has, in fact, been a stoppage of work and, if there has, if COVID-19 is the cause of that stoppage.

[43] In Coral Princess Cruises Deputy President Lake said:

[10] While the events that could cause a stoppage have not been prescribed to a finite list, the requirement of a genuine stoppage has been interpreted strictly. In Bristow Helicopters, Cambridge C stated:

[62] … The circumstances contemplated by subsection 524 (1) (c) of the Act would require identification of some event which involved work being consciously halted for some reason and ordinarily for some identified period of time. A reduction in the available work for the EC 225 helicopters, for whatever reasons, does not represent a stoppage of work in satisfaction of the terms of subsection 524 (1) (c) of the Act.

[12] A mere reduction in available work can not constitute a stoppage – this would go against the ordinary definition of a ‘stoppage’, as is required by statutory interpretation. Such an interpretation would develop a perverse outcome where s 524(1)(c) could be applied so liberally as to deprive employees their fundamental entitlement to work under an employment relationship. In Bristow Helicopters it is clear that the employer still had trade in which it could engage and the examples set down by the Full Bench indicate that there was sufficient useful work that could be undertaken.

[13] However, there remains a question of whether a genuine stoppage of work occurs when an employer’s business is not trading, but there still exists some limited functions that can be performed. This is not a question of whether there is a stoppage of work: a stoppage exists where there is a cessation of trade. ‘Work’, according to the dictionary definition applies to the ‘activity’ of the business, which in this case relates to the carriage of passengers on various cruise holidays. This activity has entirely halted and should, therefore, be properly characterised as a stoppage of work. This continues to be the case regardless of whether some administrative or caretaker functions of the business continue to be required – these functions do not properly represent the ‘activity’ of the business.

[Endnotes omitted]

 

[44] In Stelzer Deputy President Anderson said:

[57] …what constitutes a “stoppage of work”…should not be so broadly construed as to include a mere downturn in business activity nor be so narrowly applied as to require the entire cessation of business activity. The statutory phrase is a stoppage of work, not a stoppage of the business. For there to be a stoppage of work some defined business activity with respect to which work is performed needs to cease, but not the cessation of business activity entirely. Whilst in certain circumstances both may apply, a business might still be operating notwithstanding an external event causing distinct areas of work to be sufficiently impaired so as to warrant stand downs due to a stoppage.

[Endnotes omitted]

 

[45] PGS argues in this case that the degree of disruption of work for such a circumstance to come within a “stoppage of work” in s.524(1)(c) of the FW Act does not need to be any greater than the disruption encompassed by a strike (s.524(1)(a)) or a breakdown of machinery (s.524(1)(b)). For this reason it says that there is no requirement that the disruption result in the cessation of work.

[46] The approach proposed by PGS it seems to me is not to the point. Whilst there must be some event for which the employer is not held responsible that is the cause of the stoppage of work that stoppage cannot just be a mere “disruption” to the way the work is done. The phrase used in s.524(1)(c) of the FW Act is “stoppage of work”. This connotes some greater effect that a mere “disruption” to the way work is performed. If it was intended to allow a stand down where (everything else having been met) there was a “disruption” it can reasonably be expected this would be specified but the word used is “stoppage” and, whilst a stoppage will be a disruption, not all disruptions will be stoppages. My conclusion on this point is consistent with the decision of the Full Bench in Construction, Forestry, Maritime, Mining and Energy Union v Ta Ann Tasmania Pty Ltd.[14] In that decision the Full Bench said that “[t]hus the “other” stoppages of work referred to may be regarded as eiusdem generis with strikes and breakdowns of machinery, all constituting stoppages of work for which the employer cannot reasonably be held responsible.”[15] [Underlining added]

[47] I also endorse and adopt the approach of Deputy President Anderson set out above in Stelzer. The stoppage should not be so broadly construed to encompass a “disruption” and not so narrowly construed to require every aspect of the business to close.

[48] To this end it is also necessary to properly define the “work” that is carried on in the business such that the stoppage is considered in some sound context.

[49] PGS is a school. Its role is to provide an education to its students. I accept, as was put by PGS, that education is a broad concept and is not restricted to subjects taught in a classroom or academic education although it is difficult to envisage an “education” provided by a school that does not have, at its core, academic education. In this respect the students of PGS are well served by extensive grounds and facilities beyond the classroom. The students have access to subjects including drama and sports, the delivery of which may be curtailed to some degree while students are not onsite.

[50] Mr Johnston said that the “fundamental business [of the school] is I believe, is to educate students onsite”[16] and that the delivery of online learning is, in many ways, a totally new business.

[51] It would be wrong to think that schools that do not have access to such extensive facilities as those at PGS[17] are not providing a sound education to their students. If this was the case many students, particularly at inner city schools where space is at a premium, would be deprived of an education. Further, it would be wrong to think that an education cannot be delivered by online or remote learning. Many students learn remotely, from young children through to University students. To conflate the place where the education is delivered or method of delivery with the delivery of education itself would, in my opinion, be wrong.

[52] I therefore do not accept that the business of PGS is to provide onsite education. That would imply that PGS is no longer meeting its core responsibilities as a school because the students are not onsite.

[53] There can be no doubt that during the period in which students are learning remotely the “business activity” or work of the school continues. Classes are delivered, teachers engage with students and students with their teachers and with each other. That PGS elects to deliver classes as it does (with no visual contact of the students by the class teacher) does not alter the work that is being done. In finding this I do accept that some aspects of the school’s activities may be diminished although there is not enough evidence before the Commission to be specific as to this. I would note however that no teacher registered with the Victorian Institute of Teachers (VIT) has been stood down such that it can be assumed that all teaching activities (including those associated with sports and drama) continue.

[54] I am therefore not satisfied that the work of the school has stopped as contemplated by s.524(1)(c) of the FW Act.

Is there a business activity within the school that has stopped?

 

[55] Whilst there has not been a stoppage of the total work of PGS a residual question is if there is a business activity (i.e. a defined and identifiable part of the activity of the school) that has stopped[18] such as it might be considered to be a stoppage of work.

[56] As I have said above, classroom activity has not ceased although it is now carried out remotely.

[57] Ms Pearman’s job title is Classroom Assistant. I do not need to grapple with the question of her precise role although I would observe that the evidence before me does not support a finding that her role is equivalent to that of a Learning Support Assistant.

[58] Ms Pearman’s key responsibilities as a Classroom Assistant are:

KEY RESPONSIBILITIES & DUTIES

 

  • Assists in the learning programs as required by the classroom Teachers
  • Assists in the provision of a safe working environment for school age children
  • Works with classroom teachers to ensure support for students in the classrooms
  • Assist with the specialist teachers in our co-curricular program when needed
  • Assists with the School’s compliance with the Work Place Health and Safety policy and other School policies as required
  • Playground duties in the Clarke Centre playground
  • Assist with transition programs
  • Assist with organizational tasks for classroom teachers
  • Work with small groups of students under classroom teacher’s instruction
  • Attend camps and study tours when required
  • Such other duties as may be required from time to time

[59] To the extent that classroom teaching continues, albeit online, I am not satisfied that there has been a cessation of the defined activity of classroom teaching at PGS.

[60] PGS assert that teachers did not want the distraction of a classroom assistant whilst they deliver remote learning. No teacher was called to give evidence of this but in any event that submission fails to respond to the critical inquiry which is whether the business activity of classroom teaching which Ms Pearman is involved in has ceased. To consider if the specific activities she undertakes for any particular teacher may have ceased is to embark on a definition of business activity so broad to not be about the activity of the business but rather the activity of the individual within the business.

[61] I am not satisfied, in this case, that the business activity in which Ms Pearman is engaged in as indicated by her responsibilities outlined above has ceased for a cause for which the school could not be held responsible.

[62] Mr Johnston said of teachers that “[t]hey’re already grappling with the enormous amount of responsibility. It was felt by the executive team that we should manage this as prudently as possible…”.[19] This strongly suggests that it was the decision of the school to remove the classroom assistant from their role as a means of managing teacher workload. It would therefore appear that, to the extent it might be argued, that the business activity of the classroom assistant has stopped, this was a matter within the control of the school.

[63] Ms Louise Nicholls Easley, Head of Junior Years at PGS, suggested that the role of a classroom assistant was “attached to the physical space they work in”[20]. The same could be said of any number of staff members – including teachers – of the school. However, this does not accord with Ms Pearman’s duties and responsibilities which include responsibility and engagement with the teacher and students. To the extent the “classroom” is specified I do not consider that this is a limitation on the responsibilities.

[64] Ms Lees and Ms Campbell are both Library Technicians. They have provided the same role statement which states as follows:

Essential Duties and Responsibilities include the following. Other duties may be assigned.

 

  • Assists with data entry and the maintenance of the Resource Centre database
  • Assists with the maintenance of the general environment in the Resource Centre, including shelving of resources
  • Attends the Loans desk as required
  • Assists staff and students in the use of the Centre’s information system and catalogue searching, to facilitate the location of resources.
  • Assists staff and students with reference queries and search processes.
  • Supervises and works with groups of students involved in project work, reading and research.
  • Catalogues Resource Centre resources
  • Assists with artwork and arrangement of displays
  • Assists in the Audio Visual Department as required.
  • Assists in the production of staff and student identification cards as required
  • Assists in the training of new staff
  • Such other duties as may be required from time to time.

The School reserves the right to alter roles and responsibilities to suit the leadership and management requirements at that point in time.

 

[65] I accept that some of the work of the library (at least) has ceased. This includes, in relation to the duties of the library technician: book loans, the need to shelve books, the purchase of new books, on-site displays, audio visual work and perhaps other work.

[66] Clearly not all work of the library has ceased. The teacher/librarian is not stood down and, it can therefore be assumed, is providing some library work as required of that role. Further, evidence was given by Mr Johnston that the teacher/librarian role continued.[21] He also gave evidence that (some) students and teachers access the online library[22] such that the activity of the library has not ceased.

[67] Whilst it is abundantly clear that there has been a reduction in demand on the library and that the physical space is not being used, on the evidence before me I cannot conclude that the business activity of the library has stopped. Again to narrow the focus of the activity down to the specific duties of one position it seems to me is to so broadly define the “activity” of the business to the activity of the individual employee such that any stand down to be justified by consideration as a “stoppage of work”.

[68] Many questions were asked of witnesses with respect to the library catalogue and to the extent work on this was required to be done. To the extent that PGS does not wish to have any updating or maintenance of the catalogue done during this period of time, that evidence does not support a finding that the work of the library has ceased. It is no more than evidence that PGS does not wish to have certain work done at this point in time, not that the work has stopped for a reason reasonably beyond the control of the school.

[69] Ms Nicholls-Easley said that the relabelling of books is not a priority but did agree that it would be a “longer term thing”[23] and that the school had a goal of books being labelled appropriately. Ms Celeste Hudson agreed that such work was not a “high priority”[24] and said that the completion of the task of re-labelling was something she needed to do. To the extent the junior library is responsible for it, I am also satisfied that just because the school does not wish to have certain labelling of books done at this point in time is not evidence that supports a finding that the work of the library has stopped for reasons beyond the control of the employer. Rather it supports a conclusion that the work has stopped because of a direct decision of PGS that it does not wish to have certain work undertaken at this point in time.

[70] I have rejected the approach of considering first if the employee can be usefully employed and then determining if there has been some reason external to the employer for that. In any event the approach of PGS in this case would allow it to determine what work it wanted done or not done and, on this basis justify a stand down.

[71] For the reasons set out above I do not accept there has been a stoppage of work within classroom teaching or the library (to the extent they can be classified as distinct business activities) for reasons beyond the control of PGS.

CONCLUSION ON STOPPAGE OF WORK

 

[72] PGS encourages me in this case to first determine if there is useful work on which the stood down employees could be usefully employed. It submits that the “correct approach” is to have regard to the nature of the work performed by the employee which, prior to the event (COVID-19 and a requirement for students to learn remotely), was scheduled to be performed but has stopped. As I have set out above I do not consider that to be the first enquiry at all. The failure to find useful work must be caused by the stoppage of work. Whether there was a stoppage of work must be determined in the first instance.

[73] There is, in this case, no stoppage of work of the requisite kind. The business of the school in educating students has not stopped although some aspects of what is delivered onsite might not be occurring or is occurring in a way different to that if the students and staff were physically present at the school. On consideration of distinct parts of the business, teaching continues, the library continues (albeit in a reduced and online fashion). The first precondition for enabling a stand down is not met.

[74] I therefore reject the proposition of PGS that the work of PGS has stopped because of students learning remotely caused by COVID-19.

[75] Having found that the work has not stopped it is not necessary to consider if the stoppage is for a cause for which the school cannot be held responsible. It is therefore not necessary to consider if the employer cannot usefully employ the employees concerned because of that circumstance.

[76] I am therefore satisfied that the necessary pre-requisites for a stand down have not been met. The stand down of the employees was therefore not in accordance with the FW Act.

[77] To the extent the IEU and PGS put possibilities as to how a break down in air-conditioning in a heat wave might be treated, with all due respect to those submissions that is not the matter I have to decide. The facts of the case before me relates to the decision of PGS to stand down employees because of “a stoppage of work” due to the response to COVID-19. This is not industrial action and is not a break down in machinery and what may or may not be able to be done in those circumstances is not useful.

FAIRNESS

 

[78] Section 526 of the FW Act is concerned with dealing with a dispute in relation to Part 3-5 of the FW Act. Section 526(4) states that, in dealing with a dispute, the Commission must take into account fairness between the parties concerned.

[79] The reference to the “parties concerned” in s.526(4) of the FW Act can only be a reference to the parties to the dispute before the Commission – that is, the stood down employees and PGS. To the extent the decision in Stelzer sought to rely on fairness between the Applicant and other employees who were not stood down this would not appear to be in accord with s.526(4) of the FW Act.

[80] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited[25] Flick J said:

18 At a very general level, Qantas was correct in submitting that the power of an employer to stand down employees who are otherwise ready and willing to perform their contractual services serves two important purposes. One purpose is to provide “financial relief” to an employer from paying wages in circumstances where, through no fault of its own, the employer has no work that the employees can usefully perform; the other purpose is to protect the employees from what would otherwise flow from the termination of their services.

 

[81] PGS says, of this decision, that:

These are the considerations that inform what is fair. In circumstances where, through no fault of its own, the employer has no work that the employees can usefully perform, there is a need to both: provide financial relief to the employer; and give it the option of avoiding the termination of the employment of those employees it would not be fair to apply a standard of perfection or an unduly technical application to the preconditions for a stand down.

 

[82] That is, PGS says that fairness derives from financial relief to the employer so as to avoid terminating employment and an avoidance of an overly technical approach to the matter to be determined.

[83] PGS suggests therefore that the matters I should take into account in dealing with the dispute include the economic considerations from its perspective (reduction in income etc), that it is a charity and that the applicants have performed no work for the period they have been stood down.

[84] To the extent that PGS relies on the decision in Australian Manufacturing Workers’ Union v McCain Foods (Aust) Pty Ltd,[26] in that matter Vice President Watson accepted that the stand downs were as a result of industrial action (s.524(1)(a)) and turned his mind to whether the employees could be usefully employed. The Vice President’s statement as to fairness was in the context of the exercise by the employer of its statutory right to stand down employees.

[85] In this case I have concluded that PGS did not have the statutory right to stand down employees as the prerequisite in s.524(1)(a)-(c) of the FW Act had not been met.

[86] With all due respect to PGS it seems that its version of fairness weighs heavily in its favour and has little consideration for the employees (except that their employment has not been terminated).

[87] I acknowledge that PGS has been impacted by the need to teach its students remotely, that it has lost income from a reduction in international boarding students, that international and indigenous students who are at the school have not returned home during any school break and that the school has provided fee relief for parents.

[88] However, if it was that the test of fairness in s.526(4) of the FW Act was no more than a financial consideration in relation to the employer (a “capacity to pay” type argument) then this could have been spelt out in the legislation. It was not. The requirement is fairness between the parties and I do not consider that the notion of fairness can be so constrained.

[89] The IEU submits that fairness should be considered “external to the question of determining whether an employee can be usefully employed” and suggests that I should follow the reasoning in Stelzer. The IEU submits that I should also consider the personal circumstances of the employees concerned compared to the circumstances of PGS.

[90] The consequences of a stand down on employees can be immense. Active employment provides not just an economic benefit but also “the feeling of self-worth” that comes from employment.[27]

[91] Whilst it might be argued that, in the current COVID-19 restrictions in Melbourne, few currently derive the social benefit of work, the benefit of being part of a group that collectively is working to maintain the standards of education for a group of students (as in this particular case) should not be underestimated.

[92] Given the importance of work, the decision to stand an employee down is not a decision to be taken lightly and is not one to be taken solely to resolve a financial strain on the employer. Section 524 of the FW Act does not provide for an unrestrained right to stand down an employee. That right exists within the limits imposed by the section.

[93] These matters cannot be easily offset by a view that minimising losses on a wages bill somehow outweighs such consideration of the impact on employees of the stand down.

[94] In circumstances where I do not consider the grounds exist for standing down employees and, whilst taking into account the financial impact of remote learning on PGS, notions of fairness do not support a view that the stand down should be allowed to remain in circumstances where the jurisdictional basis for that stand down does not exist.

REMEDY

 

[95] The IEU seeks an order with prospective operation although the wording in its submission suggests the order should have retrospective effect.

[96] I accept the submissions of the IEU that it had not intended to suggest the Commission could make such an order and of PGS that such an order would be beyond the power of the Commission.

[97] By my decision I have found that the stand down of employees was not in accordance with the provisions of s.524 of the FW Act. The application of the IEU is therefore granted.

[98] I will issue an order[28] in conjunction with this decision to the effect that:

The Peninsula School, as soon as is practicable but within 24 hours of the making of the order, is to notify each affected employee that:

 

  • the stand down notified to the employee on 14 August 2020, extended on 11 September 2020 and further varied on 28 September 2020 is withdrawn;
  • the employee is permitted to return to work as directed by The Peninsular School on their next scheduled working day.

This order will come into effect at 9.00am on 30 September 2020.

 

I am confident that this remedy does not constitute an exercise of judicial power.”

 

Independent Education Union of Australia v The Peninsula School T/A Peninsula Grammar School [2020] FWC 5180 delivered 29 September 2020 per Bissett C)