1
Fair Work Act 2009
s.526—Stand down
Michael Marson
v
Coral Princess Cruises (N.Q.) Pty Ltd T/A Coral Expeditions
(C2020/1936)
DEPUTY PRESIDENT LAKE BRISBANE, 25 MAY 2020
Application to deal with a dispute involving stand down – s 524(1)(c) - stand down in relation
to a stoppage of work – stand down relating to a government directive due to COVID-19 –
whether employees could have been usefully employed – whether the Applicant was capable
of useful employment - Fair Work Act 2009 ss 524,526.
[1] This decision is in relation to an application by Mr Michael Marson (the Applicant)
pursuant to s 526 of the Fair Work Act 2009 (the Act). The Applicant contends Coral
Expeditions (the Respondent) stood him down in contravention of s 524 of the Act. The
question of whether the stand down was in breach of the Act turns on whether there was any
useful work for the Applicant to perform.
[2] The matter was allocated to my Chambers on 27 March 2020. On 1 April 2020, a
conference was convened. The parties were unable to resolve the matter by agreement, so
directions were sent requiring the parties to provide submissions and any documentation
relevant to their claim. The parties have consented to a Decision being handed down on the
papers.
Background
[3] The Respondent conducts a tourism-centric operation - a cruise line whose website
states that it takes ‘guests to some of the most beautiful, yet undiscovered, regions of
Australia, Asia-Pacific and Indian Ocean Islands.’1 The dispute arises against the backdrop of
the COVID-19 pandemic, which has placed immense pressure on governments, businesses
and people across the globe. The Respondent – due to government regulations to combat
spread of the virus – is no longer able to conduct its business.2 Revenue has dropped to zero
and the Respondent has made several refunds on, what are now, cancelled cruises.3
1 https://www.coralexpeditions.com/au/about-us/.
2 Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements)
Amendment Determination (No. 1) 2020.
3 Respondent’s Submissions, [1].
[2020] FWC 2721
DECISION
E AUSTRALIA FairWork Commission
https://www.coralexpeditions.com/au/about-us/
[2020] FWC 2721
2
[4] On 26 March 2020, the Applicant, a Marine Superintendent within the Marine
Division, was notified that he had been stood down. The Respondent in their submission
outline briefly their considerations prior to standing down their employees:4
Considerable analysis by the Board and the Senior Management Executive was
undertaken considering the costs, specialist retention requirements and basic
workflows resultant from an immediate halt of business. On the initial scenario of a
return to operations in June, the company had no choice but to reduce staff costs and
applied a very clearly described first wave of actions which included cessation of
roles that had resigned and proposed roles around growth, standing down of all
casuals, standing down non-essential salaried staff/crew, reducing hours to part time
and or reducing wages by 20-30% across the company. This equates to 50% (107
stood down) reduction of workforce.
Additionally, any remaining staff have been advised that should we not be able to be
operational by end of June 2020 further measures would need to be applied. Given the
developments of COVID 19 and expectations as outlined above we anticipate further
measures will be applied by end of April to only a skeletal crew around the foundation
of the Job Keeper Scheme. Mike Marson is by no means isolated or singled out.
[5] The Marine Superintendent performs a myriad of roles, but primarily is ‘responsible
for the overall performance of the of the Marine Division. This extends to vessel maintenance,
crewing and compliance to company and legislative requirements pertinent to the operation of
the vessels.’5 The Applicant reports directly to the head of the Marine Division, the Group
General Manager. The role of Marine Superintendent is one that largely facilitates other
aspects of the business, with several of the Applicant’s responsibilities being shared with
other employees and being largely administrative in function, such as:6
‘Meet weekly with the Group General Manager, providing detailed information
relating to all aspects of the Operational Marine Department.’
‘Meet weekly with the HR Manager providing constructive input on crew
management activities…’
‘Keep the HR Manager informed of all crew issues and resolutions.’
‘Review rosters as prepared by HR Crewing and Logistic…’
‘In conjunction with the HR Manager, Fleet Engineer and Senior Master, maintain a
pool of potential replacement crew;’
‘In conjunction with the Group General Manager, conduct performance appraisals for
Fleet Engineer and Marine Ops Admin…’
‘Provide support to Masters, Mates and Chief Engineers to conduct Marine Crew
performance reviews as required.’
‘Support the HR Manager & Group General Manager, as required to ensure vessel
Masters are… conducting regular inspections…’
‘In conjunction with the Senior Master and Fleet Engineer, verify the Safety
Management System is fully functional…’ and
4 Respondent’s Submissions, at [1].
5 Position Description: Marine Superintendent, page 1.
6 Position Description: Marine Superintendent, pages 1-4.
[2020] FWC 2721
3
‘In conjunction with the Fleet Engineer be responsible for the ongoing development
and maintenance of an efficient preventative management program…’
The Legislation
[6] Part 3-5 of the Act relates to stand down – the relevant parts are extracted below:
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.
(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));
…
(4) In dealing with the dispute, the FWC must take into account fairness
between the parties concerned.
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.
[7] There are three primary criteria which must be satisfied for a stand down to be lawful
under s 524(1). First, the employee must be stood down during a time in which they cannot be
usefully employed. Second, one of the three sub-criteria must be present. In the present case,
s 524(1)(c) has been argued: a stoppage of work for which the employer cannot be held
responsible. The third criteria dictates that the employee cannot be usefully employed because
of the stoppage, as articulated by Gostenik DP in CEPU v FMP Group:7
Indeed the structure and language of s.524(1) shows that there needs to be a temporal
connection between one of the circumstances arising and the standing down of an
employee because the employee cannot usefully be employed. The words “because of”
in s.524(1) are used to indicate a causal link between the occurrence of a
circumstance and the absence of useful employment.
7 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia &
Anor v FMP Group (Australia) P/L [2013] FWC 2554, [31] (CEPU v FMP Group).
[2020] FWC 2721
4
A Stoppage of Work
[8] The concept of what constitutes a ‘stoppage of work’ has not been the subject of
significant judicial commentary. In City of Wanneroo v Automotive, Food, Metals,
Engineering, Printing and Kindred Industries Union, Williams C applied the dictionary
definition, stating:8
The Macquarie Dictionary Online 2008 relevantly defines “stoppage” as:
1.the act of stopping; cessation of activity, etc…
4.a cessation of work as a protest; strike: a twenty-four hour stoppage.
[9] The facts of this case are that the Respondent has entirely halted trade due to a
government directive to help curb the spread of COVID-19. To include an event such as
COVID-19 within the ambit of the section reflects the broad approach to interpretation
adopted in Coal & Allied Mining Services Pty Ltd v MacPherson:9
[13] Significantly neither the Supplementary Memorandum nor the Act indicates that
the stand down provisions, now contained in ss 691A and 691B, were intended by
Parliament to have the operation of a code which would operate to exclude any other
circumstances giving rise to a stand down. Those circumstances would be impossible
to anticipate and understandably no attempt has been made by the Act to make
provision for them. The Act does however relate to the specific circumstances where
stand down may be effected, those being instances where the employer is unable to use
the services of the employee.
…
[15] 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…
[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:10
[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
8 [2008] AIRC 135, [30].
9 Coal & Allied Mining Services Pty Ltd v MacPherson [2010] FCAFC 83, [13]-[15]. While this case is interpreting the
Workplace Relations Act 1996, s 691A(1) is in largely the same terms as s 524 and I consider that interpretation relevant.
10 Australian Federation of Air Pilots v Bristow Helicopters Australia Pty Ltd [2016] FWC 8515, [62] (Bristow Helicopters).
http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/wra1996220/
http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/wra1996220/
http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/wra1996220/s691b.html
http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/wra1996220/s691a.html
http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/wra1996220/
[2020] FWC 2721
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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.
[11] On appeal, the Full Bench agreed, stating:11
[45] …It cannot be said on the evidence that there was a stoppage of work in
circumstances where:
(a) There remained search and rescue work to be carried out with EC225
aircraft;
(b) There remained work with the EC225 notified by the Appellant after 19
May 2016 until 2 June 2016;
(c) CASA cleared the EC225 for search and rescue and ground runs from 16
June 2016; and
(d) There remained the decision and ability of the Appellant to retrain, and
engage on training, its workforce.
[46] As such, we are not satisfied that the Commissioner erred in construing section
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.12
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.13 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.
[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
11 Bristow Helicopters Australia Pty Ltd v Australian Federation of Air Pilots [2017] FWCFB 487, [45]-[46].
12 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia &
Ors v Qantas Airways Limited [2020] FCA 656, [23], quoting Australian Education Union v Department of Education
and Children's Services (2012) 248 CLR 1, [26]-[28].
13 Vehicle Builders Employees Federation of Australia v British Motor Corporation (Aust) Pty Ltd (1966) 8 FLR 70, 74-75.
[2020] FWC 2721
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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.
[15] Ultimately, this interpretation best fulfils the legislative intent of this section and is the
most appropriate interpretation when considering the ordinary meaning. If a cessation of trade
was not considered a genuine stoppage of work, then there would be numerous situations in
which an employer would be unable to stand down an employee who cannot be usefully
employed, only because certain ancillary facets of their business have not entirely ceased to
operate. These more administrative roles do not constitute the activity of the business.
[16] I find that there was a genuine stoppage of work, owing to the inability of the
Respondent to engage in its primary function. I find that there was no intervening cause
between the government restrictions on travel and the Respondent’s decision to stand down
the Applicant.14
Useful Employment
[17] Watson VP in AMWU v McCain relevantly summarised the explanatory memorandum
and particular case law, which was recently affirmed by Flick J in CEPU v Qantas:15
[14] In applications under s526 of the Act reliance has been placed on the
explanatory memorandum leading to the enactment of sections 524-6. Paragraph
2077 of the explanatory memorandum provides:
An employer can only stand down an employee if they cannot be usefully
employed. If the employer is able to obtain some benefit or value for the work
that could be performed by an employee then the employer would not be able
to stand down the employee.
[15] I agree that this statement should be used as an aid in interpreting the effect of
s524. As the concepts involved in s524 and the approach contained in the explanatory
memorandum reflect previous case law dealing with stand down provisions in awards
it is also appropriate to obtain some guidance from that case law on the proper
interpretation of relevant concepts.
[16] A frequently applied statement on the meaning of “useful work” is contained in
the 1971 judgement of Spicer CJ and Smithers J of the Commonwealth Industrial
Court in Re Carpenters and Joiners Award. As has been noted in subsequent cases,
that statement was made in the context that deploying some employees and not others
could lead to industrial unrest. I prefer to apply the approach of Morling J in
Townsend v General Motors Holden’s Ltd who, after reviewing the various authorities
said:
14 Jarrad v Melbourne and Metropolitan Tramways Board (1978) 21 ALR 201, 204 (Jarrad).
15 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing
Workers' Union (AMWU) v McCain Foods (Aust) Pty Ltd [2011] FWA 6810, [14]-[16] (AMWU v McCain). For the
recent affirmation see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied
Services Union of Australia & Ors v Qantas Airways Limited [2020] FCA 656, [21] (18 May 2020) (CEPU v Qantas).
Note that only a portion of this extract from [16] was extracted in CEPU v Qantas.
[2020] FWC 2721
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In my opinion the question whether an employee cannot be usefully employed
because of a strike is largely a question of fact. No doubt, as a matter of law,
some considerations will be irrelevant in determining the question of fact. But
I reject the argument that the economic consequences to the employer are to
be ignored in deciding the whether employees can be usefully employed. I
accept that it is a material matter that work has been scheduled to be done by
an employee on a day when, in fact, he is stood down. In many cases that will
be a powerful indication that the work which was scheduled to be done was
work which would have been useful to the employer. If the employee is stood
down in those circumstances the employer will necessarily have to establish
that because of circumstances that arose after the work was first scheduled to
be done, the employee could not be usefully employed.
What I have so far said does not mean that cl. 6(g)(i) of the award gives GMH
the right to unilaterally stand down its employees whenever there is a strike
and it is convenient for it to do so. An employee may be able to be usefully
employed although, as a matter of convenience, GMH would prefer him not to
be at work. Questions of fact and degree will always be involved in
determining whether, on the one hand, an employee cannot be usefully
employed or whether, on the other hand, he can be usefully employed but it
is not convenient to GHM to employ him. Whether a particular set of facts
falls on one side of the line or the other will itself be a question of fact. In
deciding that question I think it is proper to take the approach which Shepperd
J. thought appropriate in a somewhat similar context - see In re Dispute -
Australian Iron & Steel Pty Ltd; re Stand down of Bricklayers (No. 1) (1972)
A. R. (N.S.W.) 285 at p. 296. That is to say, if it is shown that an employer has
acted upon proper principles and in good faith, “the evidence... will not... be
gone through with a tooth-comb in order to apply to its actions a standard of
perfection which in cases such as this will always be impossible to achieve”.
[18] The quoted passage from VP Watson makes reference to the decision in Re
Carpenters.16 While the Vice President preferred the approach in Townsend v General
Motors,17 I am of the view that the two cases are capable of concurrent application. Indeed,
Morling J in Townsend relevantly extracts the interpretation of ‘usefully employed’ by Spicer
CJ and Smithers J in Re Carpenters:18
The expression “usefully employed” necessarily connotes that by the employment in
contemplation there will be a net benefit to the employer’s business by reason of the
performance of the particular work done. If the performance of the work done will
prejudice the conduct of the employer’s business then it is not useful to him although
the work in itself would probably, to some extent, contribute to production.
[19] VP Watson’s extract from Townsend primarily stipulates that ‘useful employment’ is a
question of fact and that necessarily in determining the factual matrix, one must give
consideration to the conduct of the employer. If the employer has acted in good faith, this will
be a factual consideration in favour of the employer. This reflects s 526(4) of the Act, which
16 Re Carpenters and Joiners Award (1971) 17 FLR 330, 333 (Re Carpenters).
17 Townsend v General Motors-Holden’s Ltd (1983) 4 IR 358.
18 Re Carpenters and Joiners Award (1971) 17 FLR 330, 334.
[2020] FWC 2721
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imports notions of fairness between the parties. Often the employer is acting in an emerging
and transient environment – comprising a strike action, a sudden breakage of machinery or in
this case, an evolving regulatory framework resulting in a total loss of trade. It is extremely
difficult for an employer in these circumstances to be able to act upon all the facts in a
reasoned and deliberate way and it is because of this that the conduct of the employer must be
assessed against more general notions of fairness and good faith. Where the employer is
acting out of self-preservation, it is difficult to contemplate how their actions would be
outside the realms of good faith or fairness.
[20] Re Carpenters provides further context to what can be considered useful employment,
which was adopted with approval in Jarrad and is extracted below:19
I agree with and adopt with respect the following passage from the “observations”
appearing in the joint judgment of Spicer Cl and Smithers J, in the Australian
Industrial Court in Re Carpenters and Joiners Award (1971) 17 FLR 330 at 333:-
(b)(i) Where useful employment is not available for all the employees normally
engaged in a class of work performed in some aspect of production but is
available for one or more of such employees it cannot on that ground be said
with respect to any particular employee that he cannot be usefully employed.
(ii) When in the circumstances referred to in the last preceding sub-paragraph
some employee or employees are engaged to perform the available useful work
then it can be said with respect to the others that they cannot be usefully
employed.
[21] The approach above in Re Carpenters stipulates as a general rule that where there is a
category of work available to be performed, no single employee cannot be usefully employed.
However, the ambit of useful employment is then limited to the amount of useful work
available to be performed. Where the available useful work does not extend to all employees,
those remaining employees cannot be deemed to be capable of useful employment.
[22] In this way, the test of useful employment can be comprised of two parts. First, an
assessment of the work available: it must be determined if there is useful work and then the
number of employees required to perform that useful work. Second, a more general analysis
of the conduct of the employer against notions of good faith and fairness must be undertaken.
‘It is a question of fact as to whether an employee “cannot usefully be employed” and in resolving
that question regard may be had to the “economic consequences” to the employer.’20
Can the Applicant be Usefully Employed?
[23] The Respondent has stood down some 107 employees, equalling 50% of its
workforce.21 To stand down such a large portion of one’s staff helps to ameliorate the concern
that any action of an employer could be targeted at a particular employee. As submitted by the
Respondent, the conclusion to stand down was not taken upon lightly; only after considerable
analysis considering costs, retention requirements and ongoing workflow was the decision to
stand down undertaken.
19 Jarrad v Melbourne and Metropolitan Tramways Board (1978) 21 ALR 201, 207.
20 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia &
Ors v Qantas Airways Limited [2020] FCA 656, [21] (18 May 2020).
21 Respondent’s Submissions, at [1].
[2020] FWC 2721
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[24] The Respondent business has no income and due to their business model, even in
caretaker mode, they incur some $1.5 million in fixed overheads. To curb expenditure the
Respondent has stood down all casuals and ceased hiring for any existing vacant roles, as well
as new roles based on proposed growth. The Respondent has also been given a 6-month
extension on all vessel survey requirements from 1 April, 2020 and all future slipping and
refit maintenance has been extended out to the end of 2021.22 All scheduled maintenance
(other than cosmetic and basic maintenance) has also been placed on hold.23
[25] These measures can be seen as a business necessity and indicate that the decision was
not done maliciously, but in good faith, when contemplating the economic strain on the
employer. The fact that the stand down was widespread, impacting employees from all facets
of the company – as well as another employee from the Marine Department – further indicates
that the actions taken were fair and considered. This weighs in the Respondent’s favour and
must be taken into account in considering whether the stand down was lawful.
[26] On the Respondent’s evidence, due to the ships no longer being operational, the
technical team retained within the Marine Department are sufficient to support the caretaker
requirements of the business:24
Given the ship has not been operational the technical team of vessel crew, Ship
Master and Fleet Engineer facilitate the requirement of support needed by the [Group
General Manager] and head of department.
[27] From the evidence provided it appears that the role of Marine Superintendent is
largely concerned with facilitating other units of the business and providing assistance to the
Group General Manager. In the current climate, the Group General Manager has subsumed
HR responsibilities and is attending to the other administrative tasks associated.25
[28] The Applicant in his F13 states:
3. The Stand Down Provisions in section 524(1)(c) of the Act; my role in the business
is the Marine Superintendent, include being responsible for maintaining the fleet of
ships to Classification and AMSA standards, all licencing and certification,
maintenance and repairs. The cruises for guests have stopped, but all certification,
government regulation and licencing MUST continue, it is my job to do this, therefore
my role is still required, there is no stoppage of work for me and the provisions to
stand me down legitimately do not apply.
[29] The Applicant further submitted in his submissions that his role is useful because the
Marine Superintendent:
Organises the Department’s finances;26
Organises the majority of the contractors;27
22 Respondent’s Submissions, [5].
23 Respondent’s Submissions, [6].
24 Respondent’s Submissions, [5].
25 Respondent’s Submissions, [7].
26 Applicant’s Submissions, [7].
[2020] FWC 2721
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Administers the Safety Management System;28
As the Designated Person Ashore, is required for the safe operation of the vessel;29
[30] The Applicant contends that because the work that he performs continues, his role is
automatically considered “useful” to the Respondent. This appears to be an incorrect
construction of the law around useful employment, as a role can be considered useful, but not
a particular individual, as stated in Re Carpenters.
[31] On the evidence of the Respondent, the Marine Team, of which the Marine
Superintendent is part, is capable of reallocating the work to other individuals within the
Department. The particular tasks being performed by the Marine Superintendent, due to
COVID-19 have largely diminished in size. The ship has half as many employees, reducing
the HR tasks; large portions of maintenance, except routine work, have been postponed and
attendance with regulatory bodies is currently minimal. In this environment, the role of the
Marine Superintendent can be performed by the other currently retained employees. Given the
shift in available work I am not persuaded that there is sufficient useful work for the
Applicant to perform.
[32] Further, the Group General Manager has previously held the role of the Applicant and
on his evidence, is competent in performing the responsibilities required of the Marine
Superintendent.30 In an environment where the business is running at full capacity the
administrative load would appear to be too much for a single individual. However, in a time
where the ship is not operational, the business is not trading and the number of staff are below
half, the amount of useful work would decrease. The Respondent in their submissions make it
clear ‘administrative support is not required in the state of “caretaker mode” that the vessels
are now in.’31 On this evidence, which I accept, it becomes clear that while there is useful
work to be performed by members of the Marine Department, that, in a caretaker state, the
role of Marine Superintendent, cannot be characterised as useful to the Respondent.
[33] When taking the ‘economic consequences on the employer’32 into account, it cannot
be said there is a contemplated net benefit in retaining the Applicant as a large portion of the
tasks contemplated are so reduced in capacity that they can be performed by other members of
the Marine Department. Because of this, the Marine Superintendent does not generate ‘a net
benefit to the employer’s business.’33 This reflects the conclusion drawn in Re Carpenters and
approved in Jarrad that when ‘some employee or employees are engaged to perform the
available useful work then it can be said with respect to the others that they cannot be usefully
employed.’34 I conclude that while there is useful work which can be performed, the volume
of work is insufficient for the Applicant to be characterised as ‘usefully employed’.
27 Applicant’s Submissions, [7].
28 Applicant’s Submissions, [6].
29 Applicant’s Submissions, [4].
30 Respondent’s Submissions, [8].
31 Respondent’s Submissions, [8].
32 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing
Workers' Union (AMWU) v McCain Foods (Aust) Pty Ltd [2011] FWA 6810, [14]-[16].
33 Re Carpenters and Joiners Award (1971) 17 FLR 330, 334.
34 Jarrad v Melbourne and Metropolitan Tramways Board (1978) 21 ALR 201, 207.
[2020] FWC 2721
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[34] I appreciate the Applicant’s contention that there is work which exists that can be
done; work that he could do and some which he has traditionally done. However, due to the
pandemic, the Respondent is not trading and therefore, the amount of work which exists is
limited. Further, it is difficult to classify an abundance of work as useful when one
contemplates the extreme economic pressure of the situation. The Respondent has allocated
the useful work accordingly and that allocation appears to be reasonable. I consider that the
numerous measures the Respondent has taken to preserve itself, including a widely
implemented stand down, indicate that the action was not one targeted at the Applicant. The
evidence provided shows that the decision to stand down was not one made without due
consideration and I conclude that the Respondent acted upon proper principles and in good
faith.
[35] This case concerns a cruise line that has had no opportunity but to lay up all its ships
and halt all voyages: Coral Expeditions has stood down its employees in an attempt to stay
afloat. Australia, and the rest of the world, continues to sail through the uncharted waters of a
pandemic not seen for 102 years and the Respondent has made a genuine attempt to salvage
their operation against crushing financial conditions. To eschew economic considerations in a
time such as this would be contrary to both the case law and notions of fairness. These facts
constitute a total and government mandated stoppage of work and epitomise the purpose of
Part 3-5 of the Act. In these circumstances, I find that the Applicant is not capable of useful
employment and the claim is therefore dismissed.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR719620
THE FAIR WORK MISSION THE SEAL
