[2020] FWC 4129
The attached document replaces the document previously issued with the above code on 7
August 2020.
The word ‘almost’ has been inserted before the words ‘the whole burden’ in paragraphs 67
and 69.
The word ‘week’ has been amended to ‘weeks’ in paragraph 73.
Joseph Hyde
Associate to Deputy President Anderson
Dated 7 August 2020.
1
Fair Work Act 2009
Section 526 - Application to deal with a dispute involving stand down
Kurt Stelzer
v
The Trustee for The Ideal Acrylics Unit Trust T/A Ideal Acrylics
(C2020/4992)
DEPUTY PRESIDENT ANDERSON ADELAIDE, 7 AUGUST 2020
Application to deal with a dispute involving stand down – tradesman - impact of COVID-19 –
whether stoppage of work – whether able to be usefully employed – reduced work demand but
no stoppage of work – fairness principle – payment for portion of stand down period in
settlement of dispute
[1] On 26 June 2020 Kurt Stelzer (Mr Stelzer or the Applicant) applied to the Commission
to deal with a stand down dispute under section 526 of the Fair Work Act 2009 (FW Act).
[2] The responding party is Ideal Acrylics Pty Ltd, the Trustee for the Ideal Acrylics Unit
Trust trading as Ideal Acrylics (Ideal Acrylics or the Respondent).
[3] I conciliated the matter on 1 July 2020. The dispute did not resolve. Mr Stelzer
requested it be arbitrated.
[4] Following the 1 July 2020 conference Ideal Acrylics decided to make Mr Stelzer
redundant effective 16 July 2020.
[5] I issued directions on 21 July 2020 and heard the stand down dispute (by phone) on 4
August 2020.
[6] I received written materials from Mr Stelzer. I took oral evidence from Mr Stelzer and
from two directors of Ideal Acrylics, Mr Coles and Mr Prentice.
Facts
[7] Ideal Acrylics is a small private manufacturing business of approximately eight
employees plus three directors. It manufactures benchtops from a factory in suburban
Adelaide. In addition to three working directors (Mr Coles, Mr Prentice and Mr Hocking),
prior to the impact of COVID-19, it employed four fabricators (including one casual working
near full time hours), a polisher, an estimator, an apprentice and a machinist (Mr Stelzer).
[8] The owners also own and operate a separate (and corporately distinct) business, Ideal
Stone.
[2020] FWC 4129
DECISION
E AUSTRALIA FairWork Commission
2
[9] Mr Stelzer was a long serving employee. He is a qualified tradesman who had worked
in the business since May 2012 (eight years). He reported to Mr Hocking.
[10] At the time of COVID-19’s impact he worked approximately 75% of his time as a
machinist on the (sole) CNC machine, with the remaining 25% on other factory work
(including fabrication). He had trained some of the current fabricators.
COVID-19 impacts
[11] Since February and March 2020, the COVID-19 pandemic has disrupted economic
activity in Australia.
[12] Unlike some, Ideal Acrylics has not ceased operating. However, the impact of
COVID-19 on its business has been material. It has suffered a decline in turnover of more
than 20%, but slightly less than the threshold to make it eligible for the Commonwealth’s
Jobkeeper programme.
[13] In light of these impacts, Ideal Acrylics has stood down two employees.
[14] The first, stood down in mid-April, was the casual fabricator.
[15] The second, stood down on 22 April 2020, was Mr Stelzer, its full-time machinist.
[16] No other employees of Ideal Acrylics have been stood down to date. However, two
employees of Ideal Stone were stood down in around April 2020 and subsequently a further
three from that business.
Mr Stelzer’s stand down
[17] Whilst on carer’s leave (looking after his ill father), Mr Stelzer was contacted by
phone on 16 April 2020 and advised by Mr Coles that he was unfortunately to be stood down
due to COVID-19 impacts. Mr Stelzer requested, and the business agreed, not to implement
the stand down until Mr Stelzer returned to work (20 April) and an in-person discussion could
be held.
[18] Although anxious about job security, Mr Stelzer worked as rostered on 20 and 21
April 2020.
[19] On 22 April 2020 Mr Stelzer was called into a meeting with Mr Coles and Mr
Prentice. Mr Stelzer was told that Mr Hocking would not attend as the issue was upsetting
him. Mr Stelzer was told that due to financial impacts of COVID-19 and a downturn in
business he was being stood down effective immediately, with the stand down to be reviewed
in a fortnight (4 May). He was told Mr Hocking (a working director) had the skills to take
over the operation of the CNC machine, and would do so.
[20] Mr Stelzer pushed back against the decision. He claimed to have been singled out. He
questioned why hours of all employees could not be reduced so each bore some loss. Mr
Coles said that shorter working days amongst the workforce would not work operationally.
3
[21] Mr Stelzer was handed a letter which stated1:
“Pursuant to section 524 of the Fair Work Act an employer may stand employees down
without pay during a period in which the employee cannot usefully be employed
because of a stoppage of work for any cause for which the employer cannot reasonably
be held responsible. We believe this applies to the current situation.
Unfortunately we have made the decision to stand you down for the above reason.
You are hereby stood down from your position in the business for a period of 14 days
from today, 22nd April 2020. During this period you will not be paid by us, however
your statutory leave entitlements will continue to accrue and your continuity of service
will apply.
Approximately 3 days before being the 4th May 2020, we will review whether the
stand down period needs to be extended or whether you will be asked to return to
work.
This decision has not come easily as we value your contribution to our business.
Thank you for understanding and we will be in contact on or before 6th May 2020…”
[22] There is an evidentiary dispute as to whether using annual leave was discussed at the
meeting. Mr Stelzer says it was not. Mr Coles and Mr Prentice both say it was. I do not need
to decide whose recall is preferred because I am satisfied that, even were it were discussed,
the use of Mr Stelzer’s annual leave balance (three weeks) was not agreed by Mr Stelzer.
[23] Mr Stelzer took the letter and left the workplace having been stood down without pay.
[24] Considering that Mr Stelzer’s annual leave balance would provide some income
support, the employer proceeded to draw down on that balance over the following three weeks
and paid Mr Stelzer from that source until mid-May 2020.
[25] Mr Stelzer was deeply upset by the stand down. Before being stood down on 22 April
2020, but anticipating that this would occur later that day, he made an appointment to see his
doctor in light of the stress and anxiety he was feeling. He saw his general practitioner on 24
April. He was certified unfit to work for a fortnight (until 8 May). He sent the certificate to his
employer.
[26] Ideal Acrylics and Mr Stelzer then communicated by email over the next month.
[27] On 4 May 2020 Ideal Acrylics advised Mr Stelzer that he would be reinstated when
business conditions improve but “at this point in time we are unsure when that may be”. The
employer also referred to his doctor’s medical certificate and advised Mr Stelzer that an
employee cannot claim sick leave once stood down. It offered to draw on some pro rata long
service leave to help.
[28] Being increasingly anxious about his position Mr Stelzer took two steps. He went back
to his general practitioner and, still suffering stress and anxiety, was certified unfit to work
1 Letter Ideal Acrylics (Mr Prentice) to Mr Stelzer 22 April 2020
4
from 8 May 2020 to 5 June 2020. He sent the further certificate to the employer. He also
sought and obtained advice from the Fair Work Ombudsman (FWO).
[29] Further email exchanges occurred on 11, 13 and 18 May 2020.
[30] On 11 May Mr Stelzer, after having consulted the FWO, asked the employer to clarify
three matters: he asserted that the stand down was not permitted because it was not a stoppage
of work; he claimed that the employer was not permitted to unilaterally draw down his annual
leave accrual; and claimed that he was entitled to paid sick leave for the period of his medical
certificates.
[31] On 13 May the employer advised that it considered its actions lawful and reasonable
but would seek clarification on the sick leave issue as it did not wish to “do the wrong thing”,
though it believed that sick leave was not payable once stood down. It repeated that it could
not commit to a date to end the stand down.
[32] On 18 May Mr Stelzer advised that he maintained his position. By reply email that
day, the employer also held to its position, and asserted that it had discussed deducting the
annual leave accrual with Mr Stelzer.
[33] On about 13 May 2020 Mr Stelzer ceased being paid by Ideal Acrylics as his accrued
annual leave had exhausted. When stood down without receiving income, Mr Stelzer made an
application to Centrelink for a Jobseeker (unemployment) benefit. He received income
support via Jobseeker during June 2020 and until being made redundant.
[34] Mr Stelzer filed this stand down dispute on 26 June 2020 when he received no further
response to his concerns.
[35] Following conciliation on 1 July 2020 the parties undertook to review their positions.
The employer undertook to provide as much clarity as possible.
[36] On 13 July 2020 Ideal Acrylics advised Mr Stelzer that, for operational reasons, his
position as tradesman “might” need to be made redundant. It further advised that it had not
identified any reasonable redeployment options. It invited Mr Stelzer to advise of any
options:2
“In the absence of any reasonable redeployment opportunities being identified prior to
the 16th July 2020, your employment will be terminated as a result of redundancy.”
[37] Mr Stelzer was unable to secure legal advice in this time frame and did not respond.
[38] In the absence of a response, the employer proceeded with the redundancy. Mr Stelzer
was made redundant effective 16 July 2020.
[39] Upon redundancy, Mr Stelzer was paid:
Four weeks in lieu of notice;
Fourteen weeks’ severance pay;
2 Letter Ideal Acrylics (Mr Coles) to Mr Stelzer 13 July 2020
5
Pro rata annual leave (the small amount he had accrued whilst stood down); and
Pro rata long service leave (10.4 weeks).
Submissions
[40] Mr Stelzer challenges the stand down on three grounds:
1. that it is not authorised by section 524 of the FW Act. In particular he says that the
requirement in section 524(1)(c) that he “cannot be usefully employed because of…a
stoppage of work for any cause for which the employer cannot reasonably be held
responsible” has not been met; and
2. that, both legally and in the interests of fairness, he should be recredited the accrued
annual leave that he was paid; and
3. that, both legally and in the interests of fairness, he should be paid personal leave for
the period of his medical certificates.
[41] Mr Stelzer seeks an order that he be paid wages for the period of stand down, or in the
alternative, an amount that represents fair recompense if the burden of the stand down had
been shared amongst employees.
[42] In support of these contentions Mr Stelzer submits:
there was a slow-down in business activity but no stoppage of work due to COVID-
19 or for any other reason. The manufacturing work did not stop nor did work on the
CNC machine;
no proper consideration was given to alternate options such as the option of all
members of the manufacturing workforce taking reduced hours or working fewer
days. Instead he was the only permanent employee stood down;
the employer had no right to access his accrued annual leave without his consent;
and
he had a right to paid personal leave once he produced medical certificates.
[43] In response, Ideal Acrylics submit that the stand down was authorised by section 524
of the FW Act and was fair in implementation. It submits:
the employer held off making stand downs until absolutely necessary and well into
the impact of COVID-19 on its business. Then, it stood down a casual employee
first, before standing down Mr Stelzer;
Mr Stelzer was not singled out. He was one of two employees stood down in April
2020. Other employees were stood down in the associated business (Ideal Stone);
the stand down was a fair response as it mitigated (or delayed) the need for
redundancies;
6
redeployment and alternatives were considered but no viable options existed; and
regular communication with Mr Stelzer occurred during the stand down period.
Consideration
Jurisdiction
[44] No jurisdictional barrier exists to determining the stand down dispute despite Mr
Stelzer’s subsequent redundancy.3 There is no impediment, either at law or in discretionary
considerations, not to deal with the application notwithstanding the employment relationship
having now ceased. There is utility in doing so.
Merits
[45] Section 524 of the FW Act provides:
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 (1)
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 (1),
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 La Plume v Thomas Foods International Pty Ltd [2020] FWC 3690 at [32]
7
(3) If an employer stands down an employee during a period under subsection (1), the
employer is not required to make payments to the employee for that period.
[46] Section 526(4) provides:
(4) In dealing with the dispute, the FWC must take into account fairness between the
parties concerned.
[47] Principles guiding the operation of these provisions were summarised by a full bench
of the Commission in SSX Services Pty Ltd v The Australian Workers Union:4
“Importantly, the right to stand down employees under s.524 arises from the effect of
the section itself. The right is not dependent on approval of the Commission. However,
to the extent that a dispute arises in relation to the exercise of that right, the
Commission is empowered by s.526 to deal with that dispute by arbitration. The
Commission is required to take into account fairness between the parties concerned
and thereby incorporate an overall discretionary factor into the task of determining a
dispute over whether the right to stand down is correctly invoked in the circumstances.
The parties are bound by s.527 to comply with an order of the Commission dealing
with a dispute.”
[48] The well-established canons of statutory construction apply to section 524. These
require the ordinary meaning of words used by the parliament to be adopted having regard to
context and purpose.
[49] A statutory right to stand down is an important qualification to an obligation which an
employer would otherwise have to pay an employee lawfully applicable wages for work
performed. As an exception to what would otherwise be a fundamental term of an
employment contract (to pay wages) the provision needs to be applied without excessive
breadth but in a manner that gives effect to its language and purpose.
[50] A stand down under section 524 is a statutory tool available to a business (if pre-
conditions are met) that sits alongside the right of an employer to make persons redundant
where circumstances warrant. By providing the right to stand down there is a public policy
purpose in giving an employer a tool to retain employment relationships in lieu of terminating
employment. Doing so serves common and competing social and economic goals such as a
continuing job but a temporary reduction in labour costs.
[51] The factual context applicable to Mr Stelzer’s stand down is relevant. He was stood
down in the context of a global health pandemic that is materially shaking the national and
local economy in which Ideal Acrylics operates. Those impacts continue to have unique
features not the least of which is uncertainty as to duration and intensity.
[52] As Ideal Acrylics, at the relevant time, fell short of the Jobkeeper threshold, this
dispute does not arise under Part 6-4C of the FW Act or the different language used by the
parliament for a Jobkeeper enabling stand down (section 789GDC). This dispute is to be
determined under the general stand down provisions of the FW Act (section 524).
4 [2015] FWCFB 3964 at [17]
http://www.fwc.gov.au/decisionssigned/html/2015fwcfb3964.htm
8
[53] Two preconditions (jurisdictional facts) need to exist for Mr Stelzer’s stand down to
have been consistent with those provisions: that he could not be “usefully employed” and
(given that neither section 524(1)(a) nor (b) apply) that this was because of “a stoppage of
work for any cause for which the employer cannot reasonably be held responsible” (section
524(c).
[54] A causal connection is required between the fact of not being able to be usefully
employed and the stoppage5.
[55] The only reason Ideal Acrylics stood down Mr Stelzer was to mitigate against the
impact of the COVID-19 pandemic on its business. This was made clear to Mr Stelzer orally
and in writing. There is no dispute that the effects on the business were impacts for which the
employer could not be reasonably held responsible.
[56] The issue in contention is whether there was a stoppage of work and whether Mr
Stelzer could not be usefully employed as a result of that stoppage.
[57] For the aforementioned reasons, what constitutes a “stoppage of work” in section 524
should not be so broadly construed as to include a mere downturn in business activity6 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 cease7, 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.
[58] Similarly, an employee in those areas may not be able to be usefully employed even
though other employees are able to continue working8.
[59] In this matter it is not necessary to explore the outer boundaries of what is a “stoppage
of work” or “useful employment” as I am not satisfied that the circumstances relating to Mr
Stelzer constituted a “stoppage of work” howsoever defined.
[60] I take into account that the work of a machinist is different from that of a fabricator.
However, the business activity (of manufacturing benchtops) did not cease. What occurred
was a slowing of demand (forward orders) due to the pandemic’s economic effect which
warranted a reduction in labour costs. The CNC machine operated by Mr Stelzer continued to
be operated. Upon the stand down taking effect, the machine work on the same machine was
performed by a director (Mr Hocking) and not an employee (Mr Stelzer).
5 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia &
Anor v FMP Group (Australia) P/L [2013] FWC 2554 at [31]
6 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia &
Ors v Qantas Airways Limited [2020] FCA 656 at [23] citing Australian Education Union v Department of Education
and Children's Services (2012) 248 CLR 1 at [26]-[28]; Vehicle Builders Employees Federation of Australia v British
Motor Corporation (Aust) Pty Ltd (1966) 8 FLR 70 at 74-75; Marson v Coral Princess Cruises (NQ) Pty Ltd t/as Coral
Princess [2020] FWC 2721 at [12]
7 City of Wanneroo v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2008] AIRC 135 at
[30]; Bristow Helicopters Australia Pty Ltd v Australian Federation of Air Pilots [2017] FWCFB 487 at [45] - [46]
8 See Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
& Ors v Qantas Airways Limited [2020] FCA 656 at [21]
http://www.fwc.gov.au/decisionssigned/html/2017fwcfb487.htm
http://www.fwc.gov.au/decisionssigned/html/2008airc135.htm
http://www.fwc.gov.au/decisionssigned/html/2013fwc2554.htm
9
[61] Having found that work did not stop (but simply demand for the level of work in a
continuing business unit reduced in response to an external event) I conclude that this was not
a stoppage of work within the meaning of section 524 of the FW Act.
[62] In drawing this conclusion, I take into account fairness, as required by section 526(4)
of the FW Act.
[63] In this matter, those fairness considerations cut both ways.
[64] It was fair for Ideal Acrylics to reduce labour costs. The business decision (to
substitute a wage cost with the labour of a working director) was rational. A circumstance
beyond its control had impacted demand, and whilst the relevant business activity did not stop
the employer needed to make labour force adjustments.
[65] It was also reasonable for Ideal Acrylics to, at least initially, maintain employment
relationships and use options short of redundancy.
[66] I take into account the extremely difficult circumstances in which a small business like
Ideal Acrylics has to navigate the many unknown and competing pressures thrown up by the
COVID-19 pandemic on an almost daily basis. Whilst it is entirely legitimate for business
owners to make unpalatable but necessary business decisions, their implementation should be
conditioned by the principle of fairness. At least with respect to stand downs, that is what the
law (section 562(4) of the FW Act) requires.
[67] Ideal Acrylics chose to impose almost the whole burden of the reduction in labour on
one full time employee, Mr Stelzer, whilst retaining full time employment amongst other
members of its manufacturing workforce. It did so because moving Mr Hocking (the director)
into the single operational role conducted by Mr Stelzer (machinist) was operationally the
most straightforward solution.
[68] Was this fair? There is merit in the employer’s contention that the skilled work of a
machinist needed to be substituted by the skill of a director; and that this work was higher
skilled work than that of a fabricator. However, the issue of fairness is not simply about who
filled Mr Stelzer’s role of machinist. It also concerns where that decision left Mr Stelzer vis-a-
vis other manufacturing employees. He was a long serving employee. He had trained
fabricators and from time to time did fabrication work. He was ready, willing and able to do
some of that work. He could have been “usefully employed” in that work. Yet the other
fabricators retained their full time hours and income unchanged (as did the estimator and
polisher) whilst Mr Stelzer was stood down for (what turned out to be) three months without
pay.
[69] For these reasons, I am not satisfied that Ideal Acrylics fairly selected Mr Stelzer to
carry almost the whole burden of stand down on an objectively verifiable basis.
[70] A fair approach would have been for Ideal Acrylics to apply some apportionment to
the reduction of labour between Mr Stelzer and other manufacturing employees performing
work that he was also capable of performing.
10
[71] There being no stoppage of work, and taking into account fairness considerations, the
stand down was not consistent with the FW Act.
Remedy
[72] I now turn to whether a remedy in settlement of the dispute is appropriate.
[73] The Commission does not have jurisdiction to determine legal rights, such as whether
the employer was legally correct in unilaterally running down Mr Stelzer’s three weeks of
annual leave accrual or whether Mr Stelzer had a lawful right to be paid personal leave once
stood down.
[74] However, the Commission has jurisdiction to consider these questions in the context
of making orders or recommendations for the fair and just settlement of this dispute.
[75] For three reasons I do not think it reasonable to incorporate into any remedy the three
weeks of annual leave utilised by Ideal Acrylics.
[76] Firstly, doing so would be double counting. The accrual was accessed for the purpose
of paying Mr Stelzer, and these weeks were paid to Mr Stelzer.
[77] Secondly, whilst it is reasonable for an employee to wish to retain some accrued leave
for recreational purposes, it would not have been reasonable for Mr Stelzer to retain more
than two weeks had the employer done what it should have done: consulted Mr Stelzer before
accessing the leave accrual.
[78] Thirdly, there is no material loss to Mr Stelzer on this account. Had the employer not
accessed his accrued annual leave, it would have been paid out in any event upon his
redundancy two months later.
[79] I now turn to the personal leave issue.
[80] Section 525 of the FW Act provides:
525 Employee not stood down during a period of authorised leave or absence
An employee is not taken to be stood down under subsection 524(1) during a period
when the employee:
(a) is taking paid or unpaid leave that is authorised by the employer; or
(b) is otherwise authorised to be absent from his or her employment.
Note: An employee may take paid or unpaid leave (for example, annual
leave) during all or part of a period during which the employee would
otherwise be stood down under subsection 524(1).
[81] In this matter Mr Stelzer was stood down on 22 April 2020. His first medical
certificate was dated 24 April and it certified him unfit for work from 24 April 2020 to 8 May
11
2020. In other words, he was already a stood down employee when he asserted a right to paid
personal leave.
[82] Without determining legal rights, I express the view that the employer has not acted in
breach of section 525 in those circumstances.
[83] However, as noted, section 526(4) requires the Commission to have regard to fairness,
not just lawfulness when determining stand down disputes.
[84] I consider that, given the cause of Mr Stelzer’s unfitness was the stress and anxiety
caused by being told on 16 April 2020 that he was to be stood down, working for two days
(20 and 21 April) without any follow-up by management of the issue, making an appointment
with his general practitioner on the 22 April before being stood down and the subsequent
discussion confirming the stand down, that it is fair and reasonable to have some regard to
what would have been a period of paid personal leave had the certificate been produced two
days earlier.
[85] I will take this factor into consideration, but the counterweight is that these two
certificates indicate that Mr Stelzer was unfit to work from 24 April to 5 June (inclusive). Not
being fit for work, he could not reasonably have been expected to be offered work.
[86] In fairness, these considerations balance each other out.
[87] It is nonetheless appropriate to provide a proportionate remedy to resolve the dispute.
It is appropriate that the remedy bear some relationship to the component of the income loss
incurred by Mr Stelzer which was unwarranted or unfair.
[88] There is no specific formula to apply in these circumstances though I adopt the
approach below tested against overall fairness.
[89] Mr Stelzer’s stand down was across a period of twelve weeks. For three of these
weeks he was paid (annual leave accrual to around 13 May). For the following three weeks he
was unfit for work (until 5 June). This leaves a remaining period of six weeks before his
redundancy.
[90] On the basis that he would have been entitled to work an equal portion of the available
(684)9 hours worked by the three fabrication employees in this six week period, he would
have received payment for 171 hours (684 hours divided by 4). This equates to 4.5 weeks’
pay.
[91] I also take into account that this time was available to Mr Stelzer to mitigate his loss
by looking for alternate work (not that work was readily available in the midst of a pandemic),
and that following the 1 July conference the employer was entitled time to reconsider its
position. I also take into account the contingency that Ideal Acrylics did not know how long
the stand down period would last, could not predict how the pandemic would impact actual
work flows, was acting to avert redundancies, was endeavouring to protect its business in a
rational way by seeking to reduce costs and was not eligible for a Jobkeeper wage subsidy. I
will provide a one week discount on account of these factors.
9 38 hours per week x 3 fabrication employees x 6 weeks
12
[92] I note that Mr Stelzer was apparently in receipt of Jobseeker support during this
period. Consistent with the Commission’s established approach in such circumstances, I do
not discount social welfare payments from an amount to be payable by an employer. Whether
any portion of the Jobseeker payments apparently received by Mr Stelzer should be repaid in
light of this decision is a matter between Mr Stelzer and Centrelink.
[93] Consequently, it is fair and reasonable for Mr Stelzer to be paid by Ideal Acrylics an
additional 3.5 weeks in partial compensation for his income loss during the period of stand
down in circumstances where I have found the stand down to have been based on rational
business reasons but, in implementation, not consistent with the provisions of the FW Act.
[94] On the material before me this equates to a figure of $3,657.50 gross.
Conclusion
[95] It is unnecessary to make an order in these terms as both Mr Stelzer and Ideal Acrylics
have demonstrated a willingness to submit to this arbitration process. Each now has the
opportunity, in light of this decision, to check what dollar amount equates to 3.5 week’s pay
(gross) and agree a reasonable time for payment (which should not be more than 21 days).
[96] If agreement is not reached and an order is required, I will, should Mr Stelzer request,
make an order in these terms.
[97] The dispute as notified is determined in accordance with this decision.
DEPUTY PRESIDENT
Appearances:
Mr K Stelzer, in his own right, and Mr R Barnes, as support person.
Mr L Coles (Director) and Mr D Prentice (Director), for the Respondent.
Hearing details:
2020,
Adelaide (by telephone),
4 August.
Printed by authority of the Commonwealth Government Printer
HE WORK COMMISSION THE SEA
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PR721610
