1
Fair Work Act 2009
s.604 - Appeal of decisions
The Peninsula School t/a Peninsula Grammar School
v
Independent Education Union of Australia
(C2020/7361)
VICE PRESIDENT HATCHER
VICE PRESIDENT CATANZARITI
COMMISSIONER LEE
SYDNEY, 19 FEBRUARY 2021
Appeal against decision [2020] FWC 5180 of Commissioner Bissett at Melbourne on 29
September 2020 in matter number C2020/6311.
Introduction
[1] The Peninsula School, which operates a private school named “Peninsula Grammar
School” in Victoria (School), has lodged an appeal pursuant to s 604 of the Fair Work Act
2009 (FW Act), for which permission is required, against a decision of Commissioner Bissett
issued on 29 September 20201 (decision). The decision concerned an application made by the
Independent Education Union of Australia (IEU) pursuant to s 526 of the FW Act to deal with
a dispute concerning the stand down by the School of three of its employees. The stand downs
occurred in the context of the closure of the physical operation of the School and a move to
remote learning from 5 August 2020 after the imposition of Stage 4 restrictions by the
Victorian Government in response to a significant outbreak of COVID-19 infections. The IEU
contended on the employees’ behalf that the stand downs were not authorised under s 524 of
the FW Act. In her decision, the Commissioner concluded that the three employees had not
been stood down in accordance with s 524 and that fairness as between the parties did not
support the maintenance of the stand downs. The Commissioner issued an order in resolution
of the dispute2 as follows:
“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:
1 [2020] FWC 5180
2 PR723186
[2021] FWCFB 844
DECISION
E AUSTRALIA FairWork Commission
[2021] FWCFB 844
2
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11 September 2020 and further varied on 28 September 2020 is withdrawn;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.”
[2] In its appeal, the School contends that the decision was in error in a number of
respects.
Factual background
[3] The principal facts upon which the matter before the Commissioner proceeded were
largely not in dispute, and may be summarised as follows. On 2 August 2020, the Premier of
Victoria announced the introduction of Stage 4 restrictions in Melbourne in response to a
surge in COVID-19 infections. These restrictions, subject to limited exceptions, required
schools in Melbourne to cease teaching students on-site after 3 August 2020 and to commence
remote learning from 5 August 2020.
[4] On 4 August 2020, the School advised its non-teaching staff that they were required to
work from home for the foreseeable future and, where work could not be performed at home,
they would be placed on paid leave for the short term. Staff were also advised that it would be
necessary for the School to consider standing down some employees as a result of the closure
of most of the School’s operations in accordance with the Victorian Government’s directions,
and that a consultation process concerning this would be engaged in over the next week.
[5] Two of the three employees the subject of the IEU’s application were part-time
Library Technicians who normally work in the School’s Junior Years library (library)
performing duties which include assisting students and staff to locate suitable library
resources, issuing and returning library materials, and maintaining the general environment in
the library including shelving books. Following the move to remote learning, the library was
closed and the physical borrowing of books ceased. On 14 August 2020, they were advised
that the School had been unable to identify any useful work for them to perform and,
accordingly, they would be stood down from 17 August 2020 until 13 September 2020.
[6] The third employee was engaged as a classroom assistant to assist classroom teachers
in the classrooms in the Junior School. The School decided not to involve classroom
assistants in the provision of remote learning. The third employee was advised on 14 August
2020 that the School could not identify any useful work for her to do as a result of the closure
of the school campus, the move to remote learning, and the suspension of the necessity for
classroom assistance. She was likewise stood down effective from 17 August 2020 until 13
September 2020.
[7] All three employees were advised on 11 September 2020 that their stand downs would
be extended until 25 October 2020.
[8] The IEU lodged its s 526 application on 17 August 2020. In its application, it
contended that:
[2021] FWCFB 844
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there was no stoppage of work within the meaning of s 524(1)(c) of the FW Act, the
School continued to conduct its business in a modified form and, while it might suffer
a reduction in revenue from parents’ fees, a downturn in trade was not a stoppage of
work in the relevant sense;
the employees could be usefully employed performing various duties notwithstanding
the move to remote learning; and
if there was a stoppage of work, the School could reasonably be held responsible
because it was its decision not to explore or offer alternative work opportunities for
affected employees, and both Federal and State Governments had required schools to
remain open and to continue to deliver both remote and attendance learning.
Statutory framework
[9] Part 3-5 of the FW Act contains a scheme of provisions concerning the standing down
of employees. Within that scheme, section 524 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.
[2021] FWCFB 844
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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 (1),
the employer is not required to make payments to the employee for that period.
[10] Section 526 relevantly provides that, on application, the Commission may deal with a
dispute about the operation of Pt 3-5, including by arbitration, and that in doing so it must
take into account fairness between the parties.
The decision
[11] In her decision, the Commissioner characterised the dispute before her as concerning
each aspect of s 524(1) of the FW Act.3 The Commissioner also noted, before considering the
substance of the dispute, that she had been advised that, following the lifting of most of the
Stage 4 restrictions by the Victorian Government, that the three employees had been advised
by the School that their stand down would cease on 9 October 2020 and they would return to
work on 12 October 2020.4
[12] The Commissioner referred to the decision of the Commission (Anderson DP) in
Stelzer v Ideal Acrylics5 as authority for the proposition that there were two jurisdictional
facts that had to be satisfied for a stand down to be consistent with s 524, namely 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.6 The Commissioner then said:
“[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.”
[13] The Commissioner later reiterated this approach as follows:
“[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,
3 [2020] FWC 5180 at [23]
4 Ibid at [26]
5 [2020] FWC 4129, 298 IR 333
6 [2020] FWC 5180 at [29]
[2021] FWCFB 844
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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.”
[14] In accordance with this approach, the Commissioner then considered whether there
had been a stoppage of work. In this respect, the Commissioner rejected a contention
advanced by the School that the degree of disruption of work required for a circumstance to
come within a stoppage of work in s 524(1)(c) did not need to be greater than the disruption
encompassed by a strike (s 524(1)(a)) or a breakdown in machinery (s 524(1)(b)), and said
that a disruption which did not constitute an actual stoppage of work was not sufficient.7
[15] The Commissioner also endorsed and adopted the approach taken in Stelzer that a
stoppage of work did not require every aspect of the business to close,8 and considered it
necessary at the outset to properly define the “work” that is carried on in the business such
that the stoppage is considered in a sound context.9 The Commissioner did not accept in this
connection that the business of the School was to provide onsite education, since this would
imply that the School was no longer meeting its core responsibilities as a school because the
students are not onsite.10 The Commissioner found that during the period of the remote
learning, the business activity or work of the School continued, and therefore she was not
satisfied that the work of the School had stopped as contemplated by s 524(1)(c).11
[16] The Commissioner then considered what she described as the “residual question” of
whether a business activity which was a defined and identifiable part of the activity of the
school had stopped such that it might be considered to constitute a stoppage of work.12 In
respect of the third employee who was a classroom assistant, the Commissioner found that the
business activity in which she was engaged, namely classroom teaching, had not ceased but
was being conducted online and that it was the decision of the School to remove the
classroom assistant from online learning as a means of managing workload.13 The
Commissioner also rejected the proposition that the role of a classroom assistant was attached
to the physical space they worked in, and any specification of the classroom in their key
responsibilities was not a limitation on those responsibilities.14
[17] In respect of the library technicians, the Commissioner accepted that some of the work
of the library had ceased, but not all of it, and that the teacher/librarian had not been stood
down and some teachers and students were able to access the online library.15 The
Commissioner then said:
7 Ibid at [45]-[46]
8 Ibid at [47]
9 Ibid at [48]
10 Ibid at [52]
11 Ibid at [53]-[54]
12 Ibid at [55]
13 Ibid at [56]-[62]
14 Ibid at [63]
15 Ibid at [65]-[66]
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“[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’.”
[18] The Commissioner went on to find that the fact that the School did not wish any
updating or maintenance of the library catalogue or book labelling to be done during the
relevant period of time did not support a finding that the work of the library had ceased.16 The
Commissioner concluded:
“[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.”
[19] The Commissioner then dealt with the issue of fairness pursuant to s 526(4), and
rejected the submission made by the School that the financial impact of the required move to
remote learning meant that, as a matter of fairness, the stand downs should be allowed to
16 Ibid at [68]-[69]
[2021] FWCFB 844
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remain in place notwithstanding that they were not effected in accordance with s 524(1).17
The Commissioner then proceeded to award the remedy which we have earlier set out.18
Appeal grounds and submissions
[20] The School’s notice of appeal contains five grounds of appeal but, as explained in the
School’s appeal submissions, these may be reduced to two propositions:
(1) A “stoppage of work” in s 524(1)(c) refers to all circumstances, other than a
strike or breakdown in machinery, where the usual work or duties performed
by employees cannot be performed. The Commissioner erred by focusing
unduly upon the work of the employer, being the business or part of the
business, as opposed to the work of the employees in question.
(2) The fact that the employer might potentially have allocated duties or work to
employees other than their ordinary or usual duties has no bearing on the issue
of “stoppage of work” but is rather a matter going to whether an employee can
be usefully employed.
[21] Having regard to these propositions, the School contended that the Commissioner
erred in the following respects:
The Commissioner erred in considering whether there was a stoppage of work for the
purpose of s 524(1)(c) in isolation of whether the employee could usefully be
employed. The Commissioner should have considered whether the employees could
be usefully employed and, if not, whether that was because of a stoppage of work for a
cause for which the employer could not reasonably be held responsible.
The Commissioner erred by considering the issue of stoppage of work by reference to
whether some work was ongoing, without paying regard to the differences between the
work that was ongoing during the stand down period and the work previously
performed. The uncontested evidence was that the work of maintaining the physical
library, attending the physical classrooms and assisting, caring for and supervising
students on site had stopped, and the Commissioner erred in finding that this did not
constitute a stoppage of work.
The Commissioner erred in finding that, because the School made decisions to
manage teacher workload in moving to remote learning and because not all of the
duties of library technicians were required to cease, any stoppage of work was not for
a cause for which the School could not reasonably be held responsible.
The Commissioner erred by failing to give any or sufficient weight to the structure of
s 524(1), including the precondition that “the employee cannot usefully be employed
because of” one of the circumstances described in subsections 524(1)(a) – 524(1)(c);
the need to read the circumstances in s 524(1)(c) in the context of the chapeau in s
17 Ibid at [78]-[94]
18 Ibid at [95]-[99]
[2021] FWCFB 844
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524(1) and the circumstances described in s 524(1)(a) and (b), and the decisions in
Coal & Allied Mining Services Pty Ltd v MacPherson19 at [13]-[15] and CFMMEU v
Ta Ann Tasmania Pty Ltd20 at [12]-[14] and [16].
[22] The School submitted that Pt 3-5 of the FW Act is focused on the relationship between
the employee and employer and whether the employees can usefully be employed, and its
provisions are not cast in terms of “business activities”. Section 524 serves two purposes:
first, to financially relieve employers from paying wages where, through no fault of its own,
the employer has no work that the employees can usefully perform and, second, to protect
employees from what would otherwise flow from the termination of their services. It was
submitted that a stoppage of work in s 524(1)(c) is designed to pick up the wide variety of
circumstances where, for reasons for which the employer cannot reasonably be held
responsible, employees cannot be usefully employed, and a cessation of the business or part
of the business is not required. In the present case, it was submitted, the move away from in-
class teaching and on-site library attendance constituted such a stoppage for the three
employees the subject of the IEU’s application. Those employees were employed to prepare
and operate the on-site facilities of classrooms and the library at the School, and that work
stopped because attendance at, and use of, those facilities was prohibited by restrictions
imposed by the Victorian government that were beyond the School’s control.
[23] It was further submitted that, by treating the question of whether there had been a
stoppage of work as the first matter to be determined, the Commissioner relegated the
chapeau in s 524(1) to a secondary consideration and adopted an “upside-down reading of s
524(1)” with the result that employees who could not usefully be employed could not be
stood down, even where this was for a cause for which the employer could not reasonably be
held responsible. This approach, it was said, manifested in the Commissioner taking an
impermissibly narrow approach to the phrase “stoppage of work” by considering the so-called
“business activity” of the School, and resulted in the Commissioner paying too little attention
to what “work” the affected employees were actually required to perform. Further, the School
submitted, the Commissioner failed to take into account the true circumstances of the move to
remote learning, which was not undertaken by the School out of convenience or for workload
management, but was mandated by the Victorian Government and was hence a cause for
which the School could not reasonably be held responsible.
[24] The School submitted that permission to appeal should be granted because:
the decision is attended with sufficient doubt to warrant its reconsideration;
the impact of the COVID-19 pandemic, and the governmental responses thereto, have
had a notoriously profound impact on employers and employees across all industries,
particularly in Victoria, which has resulted in employers across all manner of
industries standing down employees pursuant to s 524(1)(c) of the FW Act and a sharp
increase in disputes being brought to the Commission under s 526 of the FW Act; and
19 [2010] FCAFC 83, 185 FCR 383, 197 IR 95
20 [2019] FWCFB 5300
[2021] FWCFB 844
9
it is in the public interest that the Full Bench provide guidance as to how the decision-
making process in disputes under s 526 of the FW Act operates, particularly in light of
the COVID-19 pandemic.
[25] The IEU submitted, as to the proper construction of s 524(1), that while one of the
preconditions for a valid stand down is that the employee cannot usefully be employed, and
that as a drafting device this has been included in the chapeau to the subsection, this does not
mean that this concept has primacy. It submitted that the reason why an employee cannot be
usefully employed is equally as important as the fact that the employee cannot usefully be
employed and, when this is understood, there is no reason to consider the requirements of the
section in any particular order. Because all of the requirements have to be met, it was open to
the Commissioner to consider one of them first. If there is no stoppage of work, it was
submitted, the question of whether or not an employee can usefully be employed is otiose.
[26] The IEU also submitted that the words “cannot be usefully employed” indicate that the
focus is not only on the work an employee does, but on any work which could be offered to
the employee. An employer cannot stand down an employee if there is useful work they can
be given, even if that work is not the employee’s normal work. In the present case, it was
submitted, the matter was determined at an earlier stage of the enquiry, but it is reading more
into the provision than is there to say that those words point to a requirement to look at the
normal duties of the individual employees.
[27] In relation to the meaning of the expression “stoppage of work”, the IEU submitted
that the Commissioner had taken the correct approach on the facts of this case by identifying
that the work of the School in the areas in which the stood down employees worked was
continuing and thereby concluding that there was no stoppage. In response to the School’s
submissions, the IEU said that its submission that the work the employees usually perform
has stopped was founded on an unjustified assumption that the work necessarily had to be
done in situ. The IEU further submitted that the School’s submissions invited the
circumstances of the individual employee to be the starting point of the inquiry and
effectively rendered nugatory the requirement for a stoppage of work (or a strike or
breakdown in machinery). This requirement was an important part of the statutory scheme as
it protects the position of employees from being stood down because of a mere downturn in
trade.
[28] The IEU submitted that the School’s attack on the purported finding that the stand
down was for a cause which the School could not reasonably be held responsible was
misconceived because the Commissioner, having found there was no stoppage, concluded that
it was not necessary to consider if the stoppage was for a cause for which the School could
not be held responsible nor to consider if the School could usefully employ the employees
because of that circumstance. This meant that even if the appeal was successful, it would be
necessary to remit to the Commissioner the consideration of the other elements of s 524(1) or
for the Full Bench to determine this itself.
[29] Finally, the IEU submitted that no real error had been identified in the decision, the
appeal did not enliven the public interest and, accordingly, permission to appeal should be
refused.
Consideration
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[30] The form in which s 524(1) of the FW Act is drafted has a long industrial history.
Award clauses in similar form have appeared in federal awards since the earliest days of
industrial arbitration. In 1924, the High Court in Pickard v John Heine & Sons Pty Ltd21
considered the meaning of an award clause which provided that the requirement for
employment to be terminated only by a week’s notice did not affect, relevantly, “…the right
of management… to deduct payment for any day the employee cannot usefully be employed
because of any strike by the Union or any other union or through any breakdown of
machinery or any stoppage of work by any such cause which the employer cannot reasonably
prevent.”22 There was further evolution of the wording of provisions of this nature in federal
awards and, by 1952, the most common form of the clause, as expressed in clause 19(b) of the
Metal Trades Award, was that the employer had the right “…to deduct payment for any day
the employee cannot usefully be employed because of any strike or through any breakdown of
machinery or any stoppage of work by any cause which the employer cannot reasonably be
held responsible”.23 This later became a stand-alone clause under the heading “Standing
Down Employees” (see clause 4.6 of the Metal, Engineering and Associated Industries Award
1998). In 2006, the Workplace Relations Act 1996 was amended (by the Workplace Relations
Legislation Amendment (Independent Contractors) Act 2006) to provide for a statutory right
for employers to stand down employees. Paragraphs 691A(1)(a) and (b) of the Workplace
Relations Act, which were introduced by the amendment, were to the same effect as the
current s 524(1). The context provided by this industrial history, including decisions
concerning the proper interpretation and application of the previous award and statutory
provisions, informs the proper construction of s 524(1).
[31] 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).
[32] Where s 524(1)(c) is the relevant circumstance relied upon, two elements must be
satisfied:
(a) there must have been a stoppage of work; and
(b) the employer cannot reasonably be held responsible for the stoppage.
[33] We agree with the School that, in an assessment of whether a particular employee may
be stood down pursuant to s 524(1), the logical process of analysis is to begin with the
question of whether the employee can usefully be employed over the relevant period. If the
employee can be usefully employed, the stand down will not be authorised by s 524(1) and no
21 [1924] HCA 38, 35 CLR 1
22 Ibid at 2
23 (1963) 103 CAR 498
[2021] FWCFB 844
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further inquiry as to causation is needed. The priority of this consideration is, we think,
confirmed by paragraph 2077 of the Explanatory Memorandum for the Fair Work Bill 2008,
which stated that “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 an employee.”
An employee may be usefully employed, notwithstanding that the employee cannot perform
their normal duties, if alternative duties of benefit to the employer are available to be
performed. In Re Carpenters and Joiners Award,24 the plurality of the Commonwealth
Industrial Court (Spicer CJ and Smithers J) said:
“An employee cannot be said to be one who cannot be usefully employed if there is
useful work available the performance of which is within the terms of his contract of
employment, although work of the class upon which he is usually employed or was
last employed is not available.”25
[34] Spicer CJ and Smithers J went on to qualify the above by saying:
“…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”.26
[35] As we have set out, the Commissioner took a different approach to the priority of
analysis whereby she considered, in the first instance, whether there had been any stoppage of
work within the meaning of s 524(1)(c). The Commissioner concluded that there had been no
such stoppage of work and therefore found it unnecessary to determine whether the three
employees in question could be usefully employed over the period of the stand down.
[36] While it is not impossible that the process of reverse analysis preferred by the
Commissioner might still lead to the right result in a given case, it is highly problematic. It
seems to us that there is some logical difficulty involved in searching for the cause of a given
event or circumstance without first establishing that the event or circumstance has actually
occurred. In the decision, this logical difficulty is manifested in paragraph [37] where the
Commissioner said that, after determining whether there had been a stoppage and, if so,
whether the employer was reasonably responsible for it, “…the third inquiry is whether the
employee could be usefully employed because of that stoppage”. This is plainly an “inquiry”
which does not properly arise under s 524(1), since the causal analysis required by s 524(1) is
premised on the employee being unable to be usefully employed, and this conceptual error is
a result of the causal analysis being approached from the wrong direction.
[37] We also broadly agree with the submission advanced by the School concerning the
approach taken in the decision as to whether there was a “stoppage of work” within the
meaning of s 524(1)(c). We consider that the Commissioner’s focus on the “business
24 (1971) 17 FLR 330
25 Ibid at 333
26 Ibid at 334
[2021] FWCFB 844
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activities” of the school was, with respect, not founded on the text of the provision and unduly
narrowed the ordinary meaning of the expression. On its ordinary meaning, “stoppage of
work” simply means a cessation of working activity, and the circumstances in which this may
occur are diverse. The case authorities and the Explanatory Memorandum make it clear that,
in respect of strikes and breakdowns of machinery, it is not necessary that they occur in the
employer’s own business, so that where a strike or a breakdown of machinery at the business
of a third party (for example, a supplier) results in employees of the relevant employer not
having useful work to perform, the right to stand down may become available.27 Treating
stoppages of work as eiusdem generis as strikes and breakdowns in machinery,28 there is no
reason therefore to assume that a stoppage of work which causes some or all of the employees
of an employer to have no useful work to perform need arise in the employer’s business at all.
Even where the relevant stoppage of work occurs in the employer’s business, it need not be in
the same part of the business as the employees who are to be stood down, provided that the
employer is not reasonably responsible for the stoppage and it causes the employees to have
no useful work to perform.
[38] In this case, the normal operations of the School involved the performance of work in
the physical locations of the School’s library and its classrooms. That work stopped as a direct
consequence of the Stage 4 restrictions announced by the Victorian Government on 2 August
2020. In the circumstances, we cannot see how the conclusion that there were stoppages of
work for a cause for which the School cannot reasonably be held responsible can be avoided.
We consider that the Commissioner’s approach to analysing the “stoppage of work” issue by
reference to the business activities of the School was, with respect, distracted by a
consideration as to how the School chose to conduct its alternative remote learning activities
consequent upon the stoppage of work at the school campus.
[39] However, it does not necessarily follow that the principal conclusion reached by the
Commissioner upon which the order she made was founded, namely that the stand down of
the three employees in question was not authorised by s 524(1), was in error, or that
permission to appeal should be granted and the appeal upheld as a consequence. The IEU’s
case before the Commissioner included the proposition that the three employees could
usefully be employed in the conduct of the School’s remote learning activities. That
contention, which in our view of s 524(1) should have been considered first, was not
considered at all by the Commissioner because of her conclusion that the “stoppage of work”
issue had priority. If that contention had been considered and determined in favour of the IEU,
then the conclusion could not have been reached that the stand downs were authorised by s
524(1). The IEU case, as we comprehend it, also involved the alternative proposition that, if
the employees could not be usefully employed, this was a result of a decision made by the
School as to how it wished to conduct its remote learning operations and was not caused by
any stoppages of work. Again, that contention was not considered by the Commissioner but
its determination in the IEU’s favour would necessarily have resulted in the conclusion that
the stand downs were not authorised by 524(1).
27 See Coal & Allied Mining Services Pty Ltd v MacPherson [2010] FCAFC 83, 185 FCR 383, 197 IR 95 at [15] per Marshall
and Cowdroy JJ; Re Bacon Manufacturing and Meat Preserving Award - South Eastern Division (1962) AIRL Rep 259;
Fair Work Bill 2008 - Explanatory Memorandum at [2079]
28 CFMMEU v Ta Ann Tasmania Pty Ltd [2019] FWCFB 5300 at [16]
[2021] FWCFB 844
13
[40] If we were to grant permission to appeal and uphold the appeal, it would be necessary
for these issues to be considered (either by us or by the Commissioner or another single
member on remittal). We do not consider that this would have any practical utility. The three
employees in question returned to work pursuant to the Commissioner’s order. We cannot
identify any practical consequence which could flow from a reconsideration of the order. It is
not suggested that, if the order were ultimately to be quashed, this would lead to any
consequence for the pay received by the three employees for the period from when they
returned to work pursuant to the order to the scheduled end of the stand down period on 25
October 2020. In short, we are not satisfied that the grant of permission to appeal would serve
any useful purpose. The fact that the decision here may have been attended by error is not a
sufficient basis to justify the grant of permission to appeal.29
[41] Accordingly, for the reasons given, permission to appeal is refused.
VICE PRESIDENT
Appearances:
C O’Grady QC with A Denton of counsel on behalf of the appellant.
W Friend QC on behalf of the respondent.
Hearing details:
2020.
Sydney (via video-link).
17 November.
Printed by authority of the Commonwealth Government Printer
PR727055
29 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR
388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78,
207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation
Office [2014] FWCFB 1663, 241 IR 177 at [28]
OF THE FAIR WORK MISSION THE
[2021] FWCFB 844
14
