[2020] FWC 5180
The attached document replaces the document previously issued with the above code on
29 September 2020.
Typographical errors at paragraphs 20, 30, 60, 62 and 70 corrected.
Associate to Commissioner Bissett
Dated 23 November 2020
1
Fair Work Act
2009
s.526—Stand down
Independent Education Union of Australia
v
The Peninsula School T/A Peninsula Grammar School
(C2020/6311)
COMMISSIONER BISSETT MELBOURNE, 29 SEPTEMBER 2020
Application to deal with a dispute involving stand down.
[1] The Independent Education Union of Australia (IEU) has made an application to the
Fair Work Commission pursuant to s.526 of the Fair Work Act 2009 (FW Act) for the
Commission to deal with a stand down dispute.
[2] The dispute is in relation to a decision made by The Peninsula School T/A Peninsula
Grammar School (PGS or the school) to stand down some employees during the period in
which the school has moved to remote learning following a direction by the Victorian State
Government as part of its response to the COVID-19 pandemic in Victoria and Melbourne
metropolitan areas (as defined).
[3] The IEU make the application in relation to three employees in particular – Ms Leonie
Campbell, Ms Cheryl Lees and Ms Debra Pearman (collectively, the employees). PGS does
not take issue with the standing of the IEU to bring the application.
BACKGROUND
[4] On 2 August 2020 the Premier of Victoria made a statement in response to a growth in
COVID-19 cases that said, in part:
From 6pm tonight, Melbourne will also move to Stage 4 restrictions with stronger
rules to limit the movement of people – and limit the spread of this virus across our
city…
The question I know most parents will be asking: schools will return to remote and
flexible learning – across all year levels.
Students who are currently attending onsite – including senior students and those in
our specialist schools – will go to school on Monday, have a pupil free day on
Tuesday, and be learning at home from Wednesday.
[2020] FWC 5180 [Note: An appeal pursuant to s.604 (C2020/7361) was
lodged against this decision - refer to Full Bench decision dated
19 February 2021 [[2021] FWCFB 844] for the result of the appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb844.htm
[2020] FWC 5180
2
Onsite supervision will be offered but tightened – only available for students who
really need it. That means children whose parents are permitted workers and
vulnerable kids who can’t learn from home.
[5] On 4 August 2020 Mr Stuart Johnston, the Principal of PGS, wrote to all non-teaching
staff of PGS and said:
As you are aware, on 2 August 2020, the Victorian Government implemented Stage 4
restrictions across metropolitan Melbourne. This directly impacts our school and has
resulted in the closure of the Kindergarten and a compulsory return to remote learning
arrangements for all students. In order to comply with the Government Direction,
effectively immediately all non-teaching employees will be required to work from
home, where possible, for the foreseeable future. Where work cannot be undertaken
from home you will be on paid leave in the short term. We will immediately advise
you if there are any changes. There may be a few staff required to be at work assisting
with students of families who undertake essential services and must attend School. We
are still working through what will be required.
Unfortunately, we must also consider the possibility of a stand down of some staff due
most [sic] of the School’s operations being closed resulting in a stoppage of work at
the direction of the Victorian Government. This is a difficult decision for all of us, and
it is not a decision that we have taken lightly. It is our responsibility to ensure that we
make the best decision for the entire School to keep all of our staff and students safe
during these unprecedented times.
Please rest assured, that no final decisions regarding stand down have yet been made.
Over the next week, I will engage in a consultation process with you to discuss the
possibility of a stand down and how we can mitigate the adverse impacts on you. We
look forward to discussing any matters raised by you during this consultation process..
[6] Consultation discussions subsequently occurred with each of the employees
concerned.
[7] Ms Lees is a Library Technician in the Junior Years Library located in the Clarke
Centre at PGS. On 14 August 2020 Ms Lees received in a letter from the school which said, in
part:
As a result of the State Government's mandated direction on 2 August 2020, Stage 4
restrictions have meant that the School has had to return to a period of remote and
flexible learning. As you are aware this meant that around 90% of the School's
facilities were forced to closed, [sic] as the Government restrictions meant we had to
restrict on-site attendance to ‘essential’ work. Given the limited useful and necessary
remote work required by the School at this time, we have made the difficult decision
to stand down some of our staff members.
Before making any decisions, the School has undertaken a thorough consultation
process with each staff member who may be affected by the Stand down. This
consultation involved considering whether there was ‘useful’ and ‘essential’ work
available for each staff member and what steps could be taken to mitigate any adverse
effects on each staff member.
[2020] FWC 5180
3
I want to thank you for your participation in the consultation process which has now
been completed. Unfortunately, as a result of the Stage 4 Restrictions placed upon the
School you will be stood down from 17 August 2020 as we have been unable to
identify any ‘useful’ work for you to do.
[8] The letter said that the Junior Years Library where Ms Lee worked was closed and
necessary work would be carried out by the Junior Years Librarian offsite and Ms Lees’
suggestions of work she could perform during the restricted period (e.g. labelling of books)
was not considered by the school to be “useful” work.
[9] Ms Campbell is also a Library Technician in the Junior Years Library located in the
Clarke Centre at PGS. Both Ms Campbell and Ms Lees work part-time ensuring there is a
Library Technician present 5 days per week. Ms Campbell said she received a letter from the
school on 14 August 2020 which said in part that she would be stood down effective
immediately.
[10] Ms Pearman is a Classroom Learning Assistant in the Junior School. She said that she
received a letter from the school dated 14 August 2020 which said, in part:
I want to thank you for your participation in the consultation process which has now
been completed. Unfortunately, as a result of the Stage 4 Restrictions placed upon the
School you will be stood down from 17 August 2020 as we have been unable to
identify any ‘useful’ work for you to do.
The reasons for this are;
The requirement to move to remote and flexible learning has meant the closure of
the School campus and the suspension of the necessity of Classroom Assistance
for children.
The oversight of online learning, individual student engagement and sustained
intervention will be undertaken by the Department of Learning Support
Stage 4 restrictions require us to limit staff who will be permitted to work on
campus to ‘essential’ work only. As a result, we have maintained the rotation of
staff performing ‘essential’ work required by the School at this time.
Unfortunately, your suggestion that your assistance to the teachers could help
them in their instruction of students is inhibited by the online context in which
they are now required to operate. As teaching will be conducted remotely,
teachers will be preparing all their courses and materials and require no assistance
in this area.
[11] Each of the employees was advised by the school that they would be stood down for
the period 17 August to 13 September 2020.
[12] On 11 September 2020 – after submissions and evidence had been filed in this matter
and 1 working day prior to the hearing of the application – each of the employees received a
[2020] FWC 5180
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further stand down letter which advised that, in the absence of the identification of any
“useful work” of the employee to do, each stand down was extended until 25 October 2020.
LEGISLATION
[13] The employees have been stood down in accordance with the provisions of s.524 of
the FW Act. Section 524 allows an employer to stand down employees in certain
circumstances.
[14] Section 524 of the FW Act states that:
524 Employer may stand down employees in certain circumstances
(1) An employer may, under this subsection, stand down an employee during a
period in which the employee cannot usefully be employed because of one of
the following circumstances:
(a) industrial action (other than industrial action organised or engaged in
by the employer);
(b) a breakdown of machinery or equipment, if the employer cannot
reasonably be held responsible for the breakdown;
(c) a stoppage of work for any cause for which the employer cannot
reasonably be held responsible.
(2) However, an employer may not stand down an employee under
subsection (a) during a period in which the employee cannot usefully be
employed because of a circumstance referred to in that subsection if:
(a) an enterprise agreement, or a contract of employment, applies to the
employer and the employee; and
(b) the agreement or contract provides for the employer to stand down the
employee during that period if the employee cannot usefully be
employed during that period because of that circumstance.
Note 1: If an employer may not stand down an employee under subsection (a), the employer
may be able to stand down the employee in accordance with the enterprise agreement
or the contract of employment.
Note 2: An enterprise agreement or a contract of employment may also include terms that
impose additional requirements that an employer must meet before standing down an
employee (for example requirements relating to consultation or notice).
(3) If an employer stands down an employee during a period under subsection (a),
the employer is not required to make payments to the employee for that period.
[15] Section 526 of the FW Act allows the Commission to deal with a dispute in relation to
such matters. Section 526 states as follows:
[2020] FWC 5180
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526 FWC may deal with a dispute about the operation of this Part
(1) The FWC may deal with a dispute about the operation of this Part.
(2) The FWC may deal with the dispute by arbitration.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a
recommendation or expressing an opinion (see subsection 595(2)).
(3) The FWC may deal with the dispute only on application by any of the
following:
(a) an employee who has been, or is going to be, stood down under
subsection 524(1) (or purportedly under subsection 524(1));
(b) an employee in relation to whom the following requirements are
satisfied:
(i) the employee has made a request to take leave to avoid being
stood down under subsection 524(1) (or purportedly under
subsection 524(1));
(ii) the employee's employer has authorised the leave;
(a) an employee organisation that is entitled to represent the industrial
interests of an employee referred to in paragraph (a) or (b);
(b) an inspector.
(4) In dealing with the dispute, the FWC must take into account fairness between
the parties concerned.
THE DISPUTE
[16] The dispute initially raised by the IEU is in relation to stand down notices given to
each of the employees on 14 August 2020 which notified a stand down until 13 September
2020. The IEU seeks to expand that dispute to encompass the further notice extending the
stand down until 25 October 2020 (the extension notice).
[17] PGS opposes the extension of the dispute to include the stand down brought about by
the extension notice and says that the IEU should lodge a further notification of dispute.
[18] I indicated to the parties that I would hear evidence in relation to both notices and
would determine if the dispute should be extended as sought by the IEU at the time of making
my decision.
[19] For the following reasons I am satisfied that the dispute before the Commission should
be expanded to cover the stand down as notified and extended to 25 October 2020.
[2020] FWC 5180
6
[20] The extension notices given to the employees do not purport to be new notices – they
are each headed “Extension of Stand Down” and to this extent it seems that PGS has
broadened the dispute currently before the Commission by its actions. The stand down is for
the same reason and the basis of the decision to stand the employees down has not changed.
[21] In SSX Services Pty Limited v The Australian Workers’ Union1 the Full Bench
considered the necessity to characterise a dispute so that the jurisdiction of the Commission to
deal with such a dispute is properly invoked. The Full Bench said:
[17] We have set out the relevant legislative provisions above because of their
importance to considering the grounds of appeal. 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. These provisions
make it important to correctly identify the subject matter of a dispute the subject of
arbitration for the purposes of any such order.
[18] The characterisation of disputes arises in various contexts under the Act, most
particularly in relation to disputes arising from the application of awards and
agreements. It is necessary to have regard to the nature of a dispute alleged in an
originating application and the factual circumstances as they evolve for the purposes
of conciliation and arbitration of the dispute. A Full Bench of the Commission’s
predecessor expressed the importance of characterising a dispute in this way, albeit in
a different statutory context, namely the resolution of disputes arising under certified
agreements made under the Workplace Relations Act 1996 (Cth):2
“[45] A dispute referred to the Commission must be properly characterised
before powers conferred by a dispute settlement provision in a certified
agreement are exercised. This is necessary in order to determine whether the
dispute is ‘over the application of the agreement’ within the meaning of
s.170LW of the WR Act. …
…
[47] In characterising the nature of the dispute in this matter the
Commission is not confined to the dispute notification document. The entire
factual background is relevant, including matters such as the submissions
advanced. In this context we note that in TWU v Mayne Nickless Ltd the Full
Court of the Federal Court held that in determining whether an application calls
on the Commission to exercise judicial, as opposed to arbitral, power ‘a court
should review the entire factual background to properly characterise the claim
and the power sought to be invoked.’
(footnotes omitted)”
[2020] FWC 5180
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[19] In Maritime Union of Australia v Australian Plant Services Pty Ltd, Lacy SDP
said:3
“Parliament has authorised the Commission to exercise powers under the
agreement to settle disputes over the application of the agreement and,
accordingly, its powers are limited to disputes of that kind. Therefore it is
necessary for the Commission, in each case where it is asked to deal with the
matter arising under the disputes settling procedure in an agreement, to
ascertain the character of the dispute before it in order to determine whether the
matter is a dispute over the application of the agreement, and, importantly, the
character of the dispute is distinguishable from the order that may be made in
settlement of the dispute.”
[20] We consider that the arbitration of the dispute under s.526 (1) and (2) of the
Act requires similar characterisation by the Commission for the purposes of any
arbitration of such a dispute.
[21] We have set out the full terms of the originating application above. A fair
reading of those terms is that the AWU sought to challenge the fundamental basis
relied on by the employer for the stand downs - that there was no useful work for the
employees at the relevant time. The AWU contended that “the relevant affected
employees could have been usefully employed in their normal work as contemplated
by s.524(1) of the Act”. The order sought was that SSX not stand down employees “in
circumstances where they can be usefully employed”.
[22] As paragraph [51] of the Commissioner’s decision makes clear, the parties did
not address the further question of whether the stand down was “because of one of the
circumstances set out in paragraphs 524(1) (a), (b) or (c).” The parties accepted in the
proceedings before us that this observation from the Commissioner was correct.
However the fact that they did not address the issue establishes that this matter was not
in dispute. The Commission was not empowered to deal with this question because it
did not fall within the dispute that arose in relation to s.524. In proceeding to deal with
this matter the Commissioner considered an issue outside the scope of the dispute and
exceeded the jurisdiction conferred by s.526.
[22] It is not unusual for the scope of dispute to change while it is before the Commission.
This can often occur during conciliation as matters are partly resolved or new issues, pertinent
to that notified, emerge and become clearer. In this case the basis of the dispute has not
changed. The dispute as notified is in relation to the stand down of employees due to a
stoppage of work as a result of the State Government directive on remote learning. The
grounds for the extension of the stand down is no different to that given for the initial stand
down. To require the IEU to commence the dispute process over again would, in these
circumstances, be arbitrary and meaningless.
[23] I am satisfied that the dispute before the Commission is in relation to the decision of
PGS to stand down the employees on the grounds that there is no work the employees can
each be usefully employed in because of a stoppage of work for which the employer cannot
be reasonably responsible. PGS maintains that it has grounds for the stand down and the IEU
disputes that. The dispute, therefore, goes to each aspect of s.524 of the FW Act.
[2020] FWC 5180
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[24] I am further satisfied that, by its correspondence of 11 September 2020, PGS has
extended the issues in dispute in relation to the period of the stand down but not the substance
of the dispute such that the dispute does encompass the extension of the stand down. The IEU
notified the Commission that it wished to extend the dispute before the Commission to
include the extension notices. PGS is not prejudiced by expanding the dispute to include the
extension notices.
[25] The dispute before me is therefore extended to encompass the stand down brought
about by the extension notices provided to the employees.
[26] Subsequent to me reserving my decision and prior to the issue of this decision PGS
advised my chambers, with the consent of the IEU, that, given the most recent announcements
of the Premier of Victoria in relation to lifting some restrictions, including a return to work of
all primary school children from 12 October 2020, it has advised the employees concerned
that the stand down of each will cease on 9 October 2020 and they will return to work on 12
October 2020.
[27] I am satisfied that the dispute before me is one arising in relation to the operation of
s.524 of the FW Act and a decision of PGS to stand employees down for the reasons given in
correspondence to the employees on 14 August 2020, extended on 11 September 2020 and
subsequently modified to end on Friday, 9 October 2020.
[28] The dispute is therefore a dispute to which s.526 of the FW Act applies and the
Commission does have jurisdiction to deal with the dispute.
THE ISSUES
[29] In Stelzer v The Trustee for The Ideal Acrylics Unit Trust T/A Ideal Acrylics4 (Stelzer)
Deputy President Anderson stated that there were two jurisdictional facts that had to be
satisfied for a stand down to be consistent with the provisions of s.524 of the FW Act. These
are that an employee could not be usefully employed and that this was because of a stoppage
of work for which the employer could not reasonably be held responsible.5
[30] The causal relationship between the stoppage and stand down was succinctly
expressed in Australian Federation of Air Pilots v Bristow Helicopters Australia Pty Ltd6
(Bristow Helicopters) where Commissioner Cambridge said:
[53] …the mere existence of a stoppage of work for which the employer cannot
reasonably be held responsible, is not sufficient to establish the circumstances which
satisfy subsection 524 (1) of the Act. There must be a direct causal connection
between …the stoppage of work, and the absence of useful work for the employee
who is stood down. Thus, the absence of useful work created by a breakdown of
machinery or equipment and/or a stoppage of work must be the cause of any stand
down.
[emphasis in original]
[31] This was affirmed on appeal by the Full Bench in Bristow Helicopters v Australian
Federation of Air Pilots.7
[2020] FWC 5180
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[32] The first matter to be determined therefore is if there has been a stoppage of work and,
if there has, if this is for any cause beyond the reasonable control of the employer. This much
is clear from the wording of s.524(1) of the FW Act. A consideration of whether an employee
can be usefully employed can only be considered if the circumstances in ss.524(1) (a), (b) or
(c) exist. That is, the first consideration is not if there is any useful work for the employee.
[33] This approach was adopted by Deputy President Lake in Marson v Coral Princess
Cruises (N.Q.) Pty Ltd T/A Coral Expeditions8 (Coral Princess Cruises) where the Deputy
President said:
[14] Where that cessation of trade is outside the control of the employer that will
satisfy s 524(1)(c). Any question relating to whether a particular employee, or specific
unit of the business can be stood down, is one that should be properly considered in
relation to whether the employee can be usefully employed, not whether there has
been a stoppage.
[34] I do not consider the approach I have adopted to be contrary to the decision in Coal &
Allied Mining Services Pty Ltd v MacPherson.9 In that decision Marshall and Cowdrey JJ said
that:
Properly understood, a stand down, in that context, encompasses a large range of
situations where, for various reasons, an employer is unable to provide useful work for
its employees, for a particular period of time, for circumstances beyond its control.
The employer may be temporarily deprived of electricity to run its operation. It may
not have sufficient component supplies to manufacture its goods, due to industrial
disputation by the employees of its suppliers. The employer’s factory may have been
flooded. Numerous examples readily come to mind. The need for clauses in industrial
instruments dealing with stand downs of this type has long been recognised because,
in the absence of such a provision, an employee is prima facie entitled to wages for
attending work even if no work is available: see Vehicle Builders Employees
Federation of Australia v British Motor Corporation (Aust) Pty Ltd (1966) 8 FLR 70
at 74-75.10
[35] In that passage their Honours posit the various possible reasons for a closure and that
it must be for this reason that the employer cannot usefully employ the employee. I do not
accept that this passage supports an approach where “the focus is on whether there is a
stoppage of the work of the employee stood down.”11
[36] To only consider the work performed by the employees stood down would not be to
properly consider if there has been a stoppage of work for which the employer cannot be
reasonably held responsible before considering if the employee concerned can be usefully
employed because of that stoppage.
[37] In summary, the decision-making process in dealing with a dispute under s.526 of the
FW Act is clear once the provisions of s.524 are properly understood. The first question the
Commission must ask itself (in dealing with the current dispute) is if there was a stoppage of
work. If the answer is no, no further enquiry is necessary. Without a stoppage of work no
stand down under s.524 is possible. If the answer is yes, the next question is if the cause of the
stoppage was for a reason for which the employer could not reasonably be held responsible.
Again, if the answer is no (that is, the employer could be reasonably held responsible for the
[2020] FWC 5180
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stoppage) then the inquiry ends. If the answer is yes, the third inquiry is whether the employee
could be usefully employed because of that stoppage. Of course, in dealing with the dispute
the provisions of s.526 of the FW Act, including fairness as expressed in s.526(4) must be
taken into account.
HAS THERE BEEN A STOPPAGE OF WORK?
[38] In City of Wanneroo v Automotive, Food, Metals, Engineering, Printing and Kindred
Industries Union-Western Australian Branch12 the meaning of “stoppage” was considered and
defined as:
[30] The Macquarie Dictionary Online 2008 relevantly defines "stoppage " as:
1. the act of stopping; cessation of activity, etc. ….
4. a cessation of work as a protest; strike: a twenty-four hour stoppage.
[39] Whilst this was in the context of industrial action it remains apposite to the matter
before me.
[40] In Bristow Helicopters Commissioner Cambridge said that “[t]he circumstances
contemplated by subsection 524(1)(c) of the Act would require identification of some event
which involved work being consciously halted for some reason and ordinarily for some
identified period of time.”13 [Underlining added]
[41] In Coral Princess Cruises Deputy President Lake concluded that an event such as
COVID-19 came within the ambit of s.524(1) of the FW Act. That is, it is an event for which
the employer could not reasonably be held responsible.
[42] I am satisfied that COVID-19 is the type of event contemplated by s.524(1)(c) of the
FW Act. This however does not answer the question as to whether there has, in fact, been a
stoppage of work and, if there has, if COVID-19 is the cause of that stoppage.
[43] In Coral Princess Cruises Deputy President Lake said:
[10] While the events that could cause a stoppage have not been prescribed to a
finite list, the requirement of a genuine stoppage has been interpreted strictly.
In Bristow Helicopters, Cambridge C stated:
[62] … The circumstances contemplated by subsection 524 (1) (c) of the Act
would require identification of some event which involved work being
consciously halted for some reason and ordinarily for some identified period of
time. A reduction in the available work for the EC 225 helicopters, for
whatever reasons, does not represent a stoppage of work in satisfaction of the
terms of subsection 524 (1) (c) of the Act.
…
[12] A mere reduction in available work can not constitute a stoppage – this would
go against the ordinary definition of a ‘stoppage’, as is required by statutory
[2020] FWC 5180
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interpretation. Such an interpretation would develop a perverse outcome where s
524(1)(c) could be applied so liberally as to deprive employees their fundamental
entitlement to work under an employment relationship. In Bristow Helicopters it is
clear that the employer still had trade in which it could engage and the examples set
down by the Full Bench indicate that there was sufficient useful work that could be
undertaken.
[13] However, there remains a question of whether a genuine stoppage of work
occurs when an employer’s business is not trading, but there still exists some limited
functions that can be performed. This is not a question of whether there is a stoppage
of work: a stoppage exists where there is a cessation of trade. ‘Work’, according to the
dictionary definition applies to the ‘activity’ of the business, which in this case relates
to the carriage of passengers on various cruise holidays. This activity has entirely
halted and should, therefore, be properly characterised as a stoppage of work. This
continues to be the case regardless of whether some administrative or caretaker
functions of the business continue to be required - these functions do not properly
represent the ‘activity’ of the business.
[Endnotes omitted]
[44] In Stelzer Deputy President Anderson said:
[57] …what constitutes a “stoppage of work”…should not be so broadly construed
as to include a mere downturn in business activity nor be so narrowly applied as to
require the entire cessation of business activity. The statutory phrase is a stoppage of
work, not a stoppage of the business. For there to be a stoppage of work some defined
business activity with respect to which work is performed needs to cease, but not the
cessation of business activity entirely. Whilst in certain circumstances both may apply,
a business might still be operating notwithstanding an external event causing distinct
areas of work to be sufficiently impaired so as to warrant stand downs due to a
stoppage.
[Endnotes omitted]
[45] PGS argues in this case that the degree of disruption of work for such a circumstance
to come within a “stoppage of work” in s.524(1)(c) of the FW Act does not need to be any
greater than the disruption encompassed by a strike (s.524(1)(a)) or a breakdown of
machinery (s.524(1)(b)). For this reason it says that there is no requirement that the disruption
result in the cessation of work.
[46] The approach proposed by PGS it seems to me is not to the point. Whilst there must be
some event for which the employer is not held responsible that is the cause of the stoppage of
work that stoppage cannot just be a mere “disruption” to the way the work is done. The phrase
used in s.524(1)(c) of the FW Act is “stoppage of work”. This connotes some greater effect
that a mere “disruption” to the way work is performed. If it was intended to allow a stand
down where (everything else having been met) there was a “disruption” it can reasonably be
expected this would be specified but the word used is “stoppage” and, whilst a stoppage will
be a disruption, not all disruptions will be stoppages. My conclusion on this point is consistent
with the decision of the Full Bench in Construction, Forestry, Maritime, Mining and Energy
Union v Ta Ann Tasmania Pty Ltd.14 In that decision the Full Bench said that “[t]hus the
[2020] FWC 5180
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“other” stoppages of work referred to may be regarded as eiusdem generis with strikes and
breakdowns of machinery, all constituting stoppages of work for which the employer cannot
reasonably be held responsible.”15 [Underlining added]
[47] I also endorse and adopt the approach of Deputy President Anderson set out above in
Stelzer. The stoppage should not be so broadly construed to encompass a “disruption” and not
so narrowly construed to require every aspect of the business to close.
[48] To this end it is also necessary to properly define the “work” that is carried on in the
business such that the stoppage is considered in some sound context.
[49] PGS is a school. Its role is to provide an education to its students. I accept, as was put
by PGS, that education is a broad concept and is not restricted to subjects taught in a
classroom or academic education although it is difficult to envisage an “education” provided
by a school that does not have, at its core, academic education. In this respect the students of
PGS are well served by extensive grounds and facilities beyond the classroom. The students
have access to subjects including drama and sports, the delivery of which may be curtailed to
some degree while students are not onsite.
[50] Mr Johnston said that the “fundamental business [of the school] is I believe, is to
educate students onsite”16 and that the delivery of online learning is, in many ways, a totally
new business.
[51] It would be wrong to think that schools that do not have access to such extensive
facilities as those at PGS17 are not providing a sound education to their students. If this was
the case many students, particularly at inner city schools where space is at a premium, would
be deprived of an education. Further, it would be wrong to think that an education cannot be
delivered by online or remote learning. Many students learn remotely, from young children
through to University students. To conflate the place where the education is delivered or
method of delivery with the delivery of education itself would, in my opinion, be wrong.
[52] I therefore do not accept that the business of PGS is to provide onsite education. That
would imply that PGS is no longer meeting its core responsibilities as a school because the
students are not onsite.
[53] There can be no doubt that during the period in which students are learning remotely
the “business activity” or work of the school continues. Classes are delivered, teachers engage
with students and students with their teachers and with each other. That PGS elects to deliver
classes as it does (with no visual contact of the students by the class teacher) does not alter the
work that is being done. In finding this I do accept that some aspects of the school’s activities
may be diminished although there is not enough evidence before the Commission to be
specific as to this. I would note however that no teacher registered with the Victorian Institute
of Teachers (VIT) has been stood down such that it can be assumed that all teaching activities
(including those associated with sports and drama) continue.
[54] I am therefore not satisfied that the work of the school has stopped as contemplated by
s.524(1)(c) of the FW Act.
Is there a business activity within the school that has stopped?
[2020] FWC 5180
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[55] Whilst there has not been a stoppage of the total work of PGS a residual question is if
there is a business activity (i.e. a defined and identifiable part of the activity of the school)
that has stopped18 such as it might be considered to be a stoppage of work.
[56] As I have said above, classroom activity has not ceased although it is now carried out
remotely.
[57] Ms Pearman’s job title is Classroom Assistant. I do not need to grapple with the
question of her precise role although I would observe that the evidence before me does not
support a finding that her role is equivalent to that of a Learning Support Assistant.
[58] Ms Pearman’s key responsibilities as a Classroom Assistant are:
KEY RESPONSIBILITIES & DUTIES
Assists in the learning programs as required by the classroom Teachers
Assists in the provision of a safe working environment for school age children
Works with classroom teachers to ensure support for students in the classrooms
Assist with the specialist teachers in our co-curricular program when needed
Assists with the School’s compliance with the Work Place Health and Safety
policy and other School policies as required
Playground duties in the Clarke Centre playground
Assist with transition programs
Assist with organizational tasks for classroom teachers
Work with small groups of students under classroom teacher's instruction
Attend camps and study tours when required
Such other duties as may be required from time to time
[59] To the extent that classroom teaching continues, albeit online, I am not satisfied that
there has been a cessation of the defined activity of classroom teaching at PGS.
[60] PGS asserts that teachers did not want the distraction of a classroom assistant whilst
they deliver remote learning. No teacher was called to give evidence of this but in any event
that submission fails to respond to the critical inquiry which is whether the business activity
of classroom teaching which Ms Pearman is involved in has ceased. To consider if the
specific activities she undertakes for any particular teacher may have ceased is to embark on a
definition of business activity so broad to not be about the activity of the business but rather
the activity of the individual within the business.
[2020] FWC 5180
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[61] I am not satisfied, in this case, that the business activity in which Ms Pearman is
engaged in as indicated by her responsibilities outlined above has ceased for a cause for which
the school could not be held responsible.
[62] Mr Johnston said of teachers that “[t]hey’re already grappling with the enormous
amount of responsibility. It was felt by the executive team that we should manage this as
prudently as possible…”.19 This strongly suggests that it was the decision of the school to
remove the classroom assistant from their role as a means of managing teacher workload. It
would therefore appear, to the extent it might be argued, that the business activity of the
classroom assistant has stopped, this was a matter within the control of the school.
[63] Ms Louise Nicholls Easley, Head of Junior Years at PGS, suggested that the role of a
classroom assistant was “attached to the physical space they work in”20. The same could be
said of any number of staff members – including teachers – of the school. However, this does
not accord with Ms Pearman’s duties and responsibilities which include responsibility and
engagement with the teacher and students. To the extent the “classroom” is specified I do not
consider that this is a limitation on the responsibilities.
[64] Ms Lees and Ms Campbell are both Library Technicians. They have provided the
same role statement which states as follows:
Essential Duties and Responsibilities include the following. Other duties may be
assigned.
Assists with data entry and the maintenance of the Resource Centre database
Assists with the maintenance of the general environment in the Resource Centre,
including shelving of resources
Attends the Loans desk as required
Assists staff and students in the use of the Centre’s information system and
catalogue searching, to facilitate the location of resources.
Assists staff and students with reference queries and search processes.
Supervises and works with groups of students involved in project work, reading
and research.
Catalogues Resource Centre resources
Assists with artwork and arrangement of displays
Assists in the Audio Visual Department as required.
Assists in the production of staff and student identification cards as required
Assists in the training of new staff
Such other duties as may be required from time to time.
[2020] FWC 5180
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The School reserves the right to alter roles and responsibilities to suit the leadership
and management requirements at that point in time.
[65] I accept that some of the work of the library (at least) has ceased. This includes, in
relation to the duties of the library technician: book loans, the need to shelve books, the
purchase of new books, on-site displays, audio visual work and perhaps other work.
[66] Clearly not all work of the library has ceased. The teacher/librarian is not stood down
and, it can therefore be assumed, is providing some library work as required of that role.
Further, evidence was given by Mr Johnston that the teacher/librarian role continued.21 He
also gave evidence that (some) students and teachers access the online library22 such that the
activity of the library has not ceased.
[67] Whilst it is abundantly clear that there has been a reduction in demand on the library
and that the physical space is not being used, on the evidence before me I cannot conclude
that the business activity of the library has stopped. Again to narrow the focus of the activity
down to the specific duties of one position it seems to me is to so broadly define the “activity”
of the business to the activity of the individual employee such that any stand down to be
justified by consideration as a “stoppage of work”.
[68] Many questions were asked of witnesses with respect to the library catalogue and to
the extent work on this was required to be done. To the extent that PGS does not wish to have
any updating or maintenance of the catalogue done during this period of time, that evidence
does not support a finding that the work of the library has ceased. It is no more than evidence
that PGS does not wish to have certain work done at this point in time, not that the work has
stopped for a reason reasonably beyond the control of the school.
[69] Ms Nicholls-Easley said that the relabelling of books is not a priority but did agree
that it would be a “longer term thing”23 and that the school had a goal of books being labelled
appropriately. Ms Celeste Hudson agreed that such work was not a “high priority”24 and said
that the completion of the task of re-labelling was something she needed to do. To the extent
the junior library is responsible for it, I am also satisfied that just because the school does not
wish to have certain labelling of books done at this point in time is not evidence that supports
a finding that the work of the library has stopped for reasons beyond the control of the
employer. Rather it supports a conclusion that the work has stopped because of a direct
decision of PGS that it does not wish to have certain work undertaken at this point in time.
[70] I have rejected the approach of considering first if the employee can be usefully
employed and then determining if there has been some reason external to the employer for
that. In any event the approach of PGS in this case would allow it to determine what work it
wanted done or not done and, on this basis, justify a stand down.
[71] For the reasons set out above I do not accept there has been a stoppage of work within
classroom teaching or the library (to the extent they can be classified as distinct business
activities) for reasons beyond the control of PGS.
CONCLUSION ON STOPPAGE OF WORK
[2020] FWC 5180
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[72] PGS encourages me in this case to first determine if there is useful work on which the
stood down employees could be usefully employed. It submits that the “correct approach” is
to have regard to the nature of the work performed by the employee which, prior to the event
(COVID-19 and a requirement for students to learn remotely), was scheduled to be performed
but has stopped. As I have set out above I do not consider that to be the first enquiry at all.
The failure to find useful work must be caused by the stoppage of work. Whether there was a
stoppage of work must be determined in the first instance.
[73] There is, in this case, no stoppage of work of the requisite kind. The business of the
school in educating students has not stopped although some aspects of what is delivered
onsite might not be occurring or is occurring in a way different to that if the students and staff
were physically present at the school. On consideration of distinct parts of the business,
teaching continues, the library continues (albeit in a reduced and online fashion). The first
precondition for enabling a stand down is not met.
[74] I therefore reject the proposition of PGS that the work of PGS has stopped because of
students learning remotely caused by COVID-19.
[75] Having found that the work has not stopped it is not necessary to consider if the
stoppage is for a cause for which the school cannot be held responsible. It is therefore not
necessary to consider if the employer cannot usefully employ the employees concerned
because of that circumstance.
[76] I am therefore satisfied that the necessary pre-requisites for a stand down have not
been met. The stand down of the employees was therefore not in accordance with the FW Act.
[77] To the extent the IEU and PGS put possibilities as to how a break down in air-
conditioning in a heat wave might be treated, with all due respect to those submissions that is
not the matter I have to decide. The facts of the case before me relates to the decision of PGS
to stand down employees because of “a stoppage of work” due to the response to COVID-19.
This is not industrial action and is not a break down in machinery and what may or may not
be able to be done in those circumstances is not useful.
FAIRNESS
[78] Section 526 of the FW Act is concerned with dealing with a dispute in relation to Part
3-5 of the FW Act. Section 526(4) states that, in dealing with a dispute, the Commission must
take into account fairness between the parties concerned.
[79] The reference to the “parties concerned” in s.526(4) of the FW Act can only be a
reference to the parties to the dispute before the Commission – that is, the stood down
employees and PGS. To the extent the decision in Stelzer sought to rely on fairness between
the Applicant and other employees who were not stood down this would not appear to be in
accord with s.526(4) of the FW Act.
[80] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and
Allied Services Union of Australia v Qantas Airways Limited25 Flick J said:
18 At a very general level, Qantas was correct in submitting that the power of an
employer to stand down employees who are otherwise ready and willing to perform
[2020] FWC 5180
17
their contractual services serves two important purposes. One purpose is to provide
“financial relief” to an employer from paying wages in circumstances where, through
no fault of its own, the employer has no work that the employees can usefully perform;
the other purpose is to protect the employees from what would otherwise flow from
the termination of their services.
[81] PGS says, of this decision, that:
These are the considerations that inform what is fair. In circumstances where, through
no fault of its own, the employer has no work that the employees can usefully perform,
there is a need to both: provide financial relief to the employer; and give it the option
of avoiding the termination of the employment of those employees it would not be fair
to apply a standard of perfection or an unduly technical application to the
preconditions for a stand down.
[82] That is, PGS says that fairness derives from financial relief to the employer so as to
avoid terminating employment and an avoidance of an overly technical approach to the matter
to be determined.
[83] PGS suggests therefore that the matters I should take into account in dealing with the
dispute include the economic considerations from its perspective (reduction in income etc),
that it is a charity and that the applicants have performed no work for the period they have
been stood down.
[84] To the extent that PGS relies on the decision in Australian Manufacturing Workers’
Union v McCain Foods (Aust) Pty Ltd,26 in that matter Vice President Watson accepted that
the stand downs were as a result of industrial action (s.524(1)(a)) and turned his mind to
whether the employees could be usefully employed. The Vice President’s statement as to
fairness was in the context of the exercise by the employer of its statutory right to stand down
employees.
[85] In this case I have concluded that PGS did not have the statutory right to stand down
employees as the prerequisite in s.524(1)(a)-(c) of the FW Act had not been met.
[86] With all due respect to PGS it seems that its version of fairness weighs heavily in its
favour and has little consideration for the employees (except that their employment has not
been terminated).
[87] I acknowledge that PGS has been impacted by the need to teach its students remotely,
that it has lost income from a reduction in international boarding students, that international
and indigenous students who are at the school have not returned home during any school
break and that the school has provided fee relief for parents.
[88] However, if it was that the test of fairness in s.526(4) of the FW Act was no more than
a financial consideration in relation to the employer (a “capacity to pay” type argument) then
this could have been spelt out in the legislation. It was not. The requirement is fairness
between the parties and I do not consider that the notion of fairness can be so constrained.
[89] The IEU submits that fairness should be considered “external to the question of
determining whether an employee can be usefully employed” and suggests that I should
[2020] FWC 5180
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follow the reasoning in Stelzer. The IEU submits that I should also consider the personal
circumstances of the employees concerned compared to the circumstances of PGS.
[90] The consequences of a stand down on employees can be immense. Active employment
provides not just an economic benefit but also “the feeling of self-worth” that comes from
employment.27
[91] Whilst it might be argued that, in the current COVID-19 restrictions in Melbourne,
few currently derive the social benefit of work, the benefit of being part of a group that
collectively is working to maintain the standards of education for a group of students (as in
this particular case) should not be underestimated.
[92] Given the importance of work, the decision to stand an employee down is not a
decision to be taken lightly and is not one to be taken solely to resolve a financial strain on the
employer. Section 524 of the FW Act does not provide for an unrestrained right to stand down
an employee. That right exists within the limits imposed by the section.
[93] These matters cannot be easily offset by a view that minimising losses on a wages bill
somehow outweighs such consideration of the impact on employees of the stand down.
[94] In circumstances where I do not consider the grounds exist for standing down
employees and, whilst taking into account the financial impact of remote learning on PGS,
notions of fairness do not support a view that the stand down should be allowed to remain in
circumstances where the jurisdictional basis for that stand down does not exist.
REMEDY
[95] The IEU seeks an order with prospective operation although the wording in its
submission suggests the order should have retrospective effect.
[96] I accept the submissions of the IEU that it had not intended to suggest the Commission
could make such an order and of PGS that such an order would be beyond the power of the
Commission.
[97] By my decision I have found that the stand down of employees was not in accordance
with the provisions of s.524 of the FW Act. The application of the IEU is therefore granted.
[98] I will issue an order28 in conjunction with this decision to the effect that:
The Peninsula School, as soon as is practicable but within 24 hours of the making of
the order, is to notify each affected employee that:
the stand down notified to the employee on 14 August 2020, extended on
11 September 2020 and further varied on 28 September 2020 is withdrawn;
the employee is permitted to return to work as directed by The Peninsular School
on their next scheduled working day.
This order will come into effect at 9.00am on 30 September 2020.
[2020] FWC 5180
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[99] I am confident that this remedy does not constitute an exercise of judicial power.
COMMISSIONER
Appearances:
E. White of counsel for the Applicant.
C. O’Grady of counsel and A. Denton of counsel for the Respondent
Hearing details:
2020.
Melbourne by video:
September 14, 15, 16.
Final written submissions:
Applicant: 25 September 2020
Respondent: 25 September 2020.
Printed by authority of the Commonwealth Government Printer
PR723118
Endnotes:
1 [2015] FWCFB 3964.
2 PR940366.
3 PR908236.
4 [2020] FWC 4129.
5 Ibid at [53].
6 [2016] FWC 8515.
7 [2017] FWCFB 487 at [36].
8 [2020] FWC 2721.
9 [2010] FCAFC 83; (2010) 197 IR 95
10 Ibid at [15].
11 PGS written submissions, paragraph 66.
12 [2008] AIRC 135.
13 [2016] FWC 8515 at [62].
THE FAIR WORK MMISSION THE SEAL
[2020] FWC 5180
20
14 [2019] FWCFB 5300.
15 Ibid at [16].
16 Transcript at PN1447.
17 See evidence of Stuart Johnston, attachment SJ-1, Court Book page 219.
18 See Seltzer at [57].
19 Transcript at PN1717.
20 Transcript at PN1943.
21 Transcript at PN1416.
22 Transcript at PN1461 - PN1463.
23 Transcript at PN2215.
24 Transcript at PN1808.
25 [2020] FCA 656; (2020) 295 IR 225.
26 (2011) 214 IR 1.
27 See Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22 at [32].
28 PR723186.
