This Fair Work Commission decision deals with the statutory pre-requisites for a lawful stand down.
“Consideration
[19]
In order for a stand down of an employee to be authorised by s.524(1), two conditions must be satisfied:
(1)
the employee cannot be usefully employed during the period of the stand down; and
(2)
this must be because of one of the circumstances in paragraphs (a), (b) or (c) of s.524(1).4
[20]
The effect of s.524 was considered by Commissioner McKinnon in Construction, Forestry, Maritime, Mining and Energy Union v British Concrete Pty Ltd T/A British Concrete.5 That matter involved circumstances where the employer had required that an employee be vaccinated a condition of his return to work during the COVID-19 pandemic and did not allow the employee to return to work in circumstances where the employee did not obtain a vaccination. In that matter Commissioner McKinnon said:
‘[11] Section 524 is a permissive provision. It permits an employer to stand down an employee in certain circumstances and also to withhold payment from the employee for the stand down period. The language of the provision, including the use of the word “may” in subsection 524(1), the words “may not” in subsection 524(2) and the word “if” in subsection 524(3), as well as the notion of a purported stand down in subsection 526(3), makes it clear that standing down an employee is a choice available to an employer if one or more of the identified circumstances in subsection 524(1) arise. An employer is not required to stand down their employees in those circumstances, and there is nothing in the language of section 524 to suggest that employees are taken to be stood down under the provision in certain circumstances. Whether a person has been stood down under section 524 of the Act is a question of fact….’6
[21]
The Commissioner then went on to consider the facts in that matter which broadly included circumstances where the employee did not want to get vaccinated and was told that he needed to be vaccinated before returning to work.7 The employer then implemented a policy requiring that employees be vaccinated in order to return to work8 and confirmed that the employee was not permitted to attend work while unvaccinated.9 The employee’s union raised a dispute with the employer asserting that the employee had been unlawfully stood down under
4 The Peninsula School t/a Peninsula Grammar School v Independent Education Union of Australia [2021] FWCFB 844 at [31].
5 [2022] FWC 177.
6 [2022] FWC 177 at [11].
7 [2022] FWC 177 at [12], [14], [16], [19].
8 [2022] FWC 177 at [26].
9 [2022] FWC 177 at [29].
[2026] FWC 2924
7
Part 3-5 of the Act.10 The employer denied that it had stood the employee down under s.524 of the Act.11
[22]
The Commissioner found that there was nothing in the chronology to support a finding that the employer had sought to exercise its right to stand down the employee under s.524 of the act, either actually or purportedly.12 The Commissioner found:
‘[32] British Concrete did not stand Mr Salha down under section 524 of the Act, and nor did it purport to stand him down under the provision. Mr Salha did not request leave to avoid being stood down and no such request was authorised by British Concrete. Instead, British Concrete directed Mr Salha to comply with a requirement to be vaccinated as a condition of attendance at work. Mr Salha was not willing to comply with the requirement. The consequence of his decision was that Mr Salha has not been permitted to attend for work since 11 October 2021.
[33] It follows that Mr Salha is not an employee covered by subsection 526(3) of the Act, and the Union has no standing to apply for orders under section 526 on his behalf.’
[23]
Similarly, in the current matter there is nothing in the account put forward by the Applicant to suggest that the Respondent had sought to exercise its right to stand down the Applicant under s.524 of the Act, either actually or purportedly. It had instead directed the Applicant not to attend work as it wanted to be satisfied of his fitness to work. In those circumstances I find that the Applicant was not an employee who has been, or is going to be, stood down under s.524(1) (or purportedly under s.524(1)). While the Applicant has accessed both personal and annual leave during the period that he was absent from the workplace, he did not request to take leave ‘to avoid being stood down under subsection 524(1) (or purportedly under subsection 524(1))’ in circumstances where the Respondent was not standing down the Applicant under s.524 of the Act, either actually or purportedly. It follows that the Applicant is not an applicant of the kind described in s.526(3) and has no standing to apply for orders under s.526.
[24]
The Respondent did not address the question of whether the Applicant could be ‘usefully employed’, noting that it has not sought to rely on s.524 to stand down the Applicant. I further note that it is not controversial that there was no industrial action (s.524(1)(a)) and no breakdown of machinery or equipment (s.524(1)(b)). There is also no evidence of a ‘stoppage of work’ in the sense contemplated s.524(1)(c) in that there was no ‘cessation of working activities’ for causes for which the employer cannot reasonably be held responsible. In these circumstances it is unsurprising that the Respondent has not sought to rely on s.524 as it has simply directed the Applicant not to attend work because of concerns it held about his fitness for work.
[25]
I am sympathetic to the Applicant’s view that if he has been told not to come to work and was not paid in circumstances where he was assessed as medically fit to return, this would not seem a fair outcome. To the extent that the Applicant takes issue with the direction that was
10 [2022] FWC 177 at [28].
11 [2022] FWC 177 at [30].
12 [2022] FWC 177 at [31].
[2026] FWC 2924
8
given to him not to attend work or about the purported exercise of rights in his employment contract, the Applicant may wish to seek advice about this.
[26]
However, as for the type of application that the Applicant has made to the Commission, the Applicant is not an applicant of the kind described in s.526(3) and has no standing to apply for orders under s.526 and the application is dismissed on this basis.”
Grieshaber v Supagas Pty Ltd Trading AS Supagas [2026] FWC 2924 delivered 5 August 2026 per Matheson C