[2022] FWC 841

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.526—Stand down

Ediz Nidai
v
Autonexus Pty Limited
(C2021/6568)

COMMISSIONER MATHESON

SYDNEY, 11 APRIL 2022

Application to deal with a dispute involving stand down.

[1] Mr Ediz Nidai (Applicant) works for Autonexus Pty Ltd (Respondent) as a forklift driver in a warehouse and lives in a local government area (LGA) that was declared a LGA of concern during the COVID-19 pandemic.

[2] In response to developments during the COVID-19 pandemic the NSW Government amended its public health orders such that from 6 September 2021, authorised workers who live in a LGA of concern must have received at least one dose of a COVID-19 vaccine in order to work outside the LGA of concern unless they had a medical contraindication preventing vaccination.

[3] In particular, the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 came into force at 4:00pm on 5 September 2021 and was in force until 11 September 2021 and provided:

• that a resident in an area of concern was not permitted to leave their area for work unless they were an ‘authorised worker’ for which a permit was required (see subclause 4.3(1) and subclause 4.3(2));

• that an authorised worker must have had one vaccination dose (or a medical contraindication certificate (see subclause 4.3(3));

• that the vaccination requirement applied from 6 September 2021. This was subsequently amended to 9 September 2021) (see subclause 4.3(3B));

• that an authorised worker would be taken to have complied with subclause 4.3(3) if they had a vaccine appointment on or before Sunday, 19 September 2021 (see subclause 4.3(3C)).

[4] On 28 August 2021 the Respondent sent out a memorandum to staff to advise them of the public health order changes and that:

• If they live or are temporarily staying in a LGA of concern, from 6 September 2021, they must not leave the LGA for work unless they have had at least one dose of a COVID-19 vaccine or evidence of a medical exemption.

• All impacted staff had been sent a survey to collect information regarding their vaccination status and a reply was required.

• If they had already received their first does of a COVID-19 vaccine, they were required to respond providing proof.

• If they were to receive their first does of a COVID-19 vaccine prior to 6 September 2020 they were required to respond and provide proof once vaccinated.

• If they had not received their first does of a COVID-19 vaccine by 6 September 2021, they may be stood down pursuant to s.524 of the Fair Work Act 2009 (Cth)(Act).

[5] The memorandum also included links to information regarding access to priority vaccinations, leave arrangements for getting vaccinations, how to provide evidence of vaccination status and how to access support services.

[6] On 3 September 2021, the Respondent wrote to the Applicant drawing his attention to the requirements under the public health order which, at that time, were due to come into effect on 6 September 2021, and stated:

“…within this context as you have not received your first does of a COVID-19 vaccine by the required date of 6 September or have an approved medical exemption AutoNexus Pty Limited will be unable to comply with the requirements of the NSW Public Health Order and you will be stood down in accordance with Section 524 of the Fair Work Act 2009 (“the Act”). This section of the Act states that employees can be stood down on unpaid leave where there is a stoppage of work for which the employer cannot be held responsible for.

You will be stood down on unpaid leave effective from Monday 6 September 2021 until

otherwise varied.

This stand down period is subject to change and is dependent on the requirements of

directives and orders issued by the New South Wales Government for example the current NSW public health order ceases to apply or you receive your first does of COVID-19 vaccine validated by the required documentation.

Employees may request to use their accrued annual leave or long service leave (if applicable) entitlements during this period. Employees may also apply to access their accrued pro-rata long service leave subject to the relevant legislation. In the absence of a request for annual leave or long service leave (or possibly both), you will remain on unpaid leave for the stand down period. During this period, where applicable, you may be eligible to apply for the COVID Disaster Payment administered through the Government…”

[7] The public health order was subsequently updated such that:

• From 9 September 2021 an authorised worker (who is at least 16 years of age) was prohibited from leaving the LGA of concern for work unless the worker had one dose of COVID-19 vaccine, had evidence of an appointment to be vaccinated between 9 September 2021 and 19 September 2021 or had a medical certificate indicating a medical contraindication and carries the required evidence. However, this did not apply if the person has not been in the area of concern in the previous 14 days.

• From 20 September 2021, an authorised worker was only able to leave their area of concern for work if they had at least one dose of a COVID-19 vaccine or evidence of a medical exemption.

[8] On 17 September 2021, the Respondent wrote to the Applicant to advise him of the updated requirements and that he would:

“…be stood down on unpaid leave effective from Monday 20 September 2021 until otherwise varied.

This stand down period is subject to change and is dependent on the requirements of directives and orders issued by the New South Wales Government for example the current NSW public health order ceases to apply of you receive your first does (sic) of COVID-19 vaccine validated by the required documentation.

[9] The Applicant indicated to the Respondent that he would not have:

• received his first dose of a COVID-19 vaccine;

• evidence of an appointment to be vaccinated between 9 and 19 September 2021; or

• an approved medical exemption.

[10] The Applicant did not work at the Respondent’s direction from 20 September 2021 until the public health order was subsequently updated such that unvaccinated employees could return to work from 11 October 2021.

[11] On 8 October 2021 the Respondent notified the Applicant the public health order had been updated and he returned to work on 11 October 2021.

Summary of the Applicant’s position

[12] The Applicant made an application to the Commission to deal with a dispute pursuant to s.526 of the Act. The Applicant sought to “go back to work as normal. Be paid for the time stood down in full, including benefits”. 1

[13] By way of summary, the Applicant submitted that no industrial action took place, there was no breakdown of machinery or equipment and there was no evidence of a stoppage of work. 2 The Applicant submitted that a stoppage of work refers to a substantial diminution of the activities, production or services provided and this did not occur during the time he says he was stood down.3

[14] As such, the Applicant disputes the ability of the Respondent to stand him down pursuant to s.524 of the Act.

Summary of the Respondent’s position

[15] By way of summary, the Respondent submitted that s.524 of the Act states that employees can be stood down on unpaid leave where there is a stoppage of work for which the employer cannot be held responsible. 4 In order to comply with the public health order it stood down employees who did not meet the requirements of the public health order in accordance with s.524 of the Act5, and the Applicant was stood down on unpaid leave from 20 September 2021 until 8 October 2021, inclusive.6

[16] The Respondent also noted that the Applicant was given the option to request to use his accrued annual leave or long service leave (if applicable) entitlements during the stand down period and that its correspondence to him included awareness about possible eligibility to apply for the COVID-19 Disaster Payment administered through the Government. 7

Legislation

[17] Part 3-5 of the Act relates to stand down. Specifically, s.524 provides for when an employer may stand down employees:

(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;

[18] Section 526 provides for when the Commission may deal with such a dispute:

(1) The FWC may deal with a dispute about the operation of this Part.

(2) The FWC may deal with the dispute by arbitration.

(3) The FWC may deal with the dispute only on application by any of the following:

(a) an employee who has been, or is going to be, stood down under subsection 524(1) (or purportedly under subsection 524(1)); ...

(4) In dealing with the dispute, the FWC must take into account fairness between the parties concerned.

Consideration

[19] I have taken into account all of the submissions that have been provide by the parties. The fact that a submission or issue is not mentioned in this decision does not mean that it has not been considered.

[20] 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. The Respondent has not sought to rely on ss.524(1)(a) and (b) of the Act however a remaining question to be determined is whether the Applicant could not be usefully employed because of a stoppage of work.

[21] The causal relationship between the stoppage and stand down was set out in in Australian Federation of Air Pilots v Bristow Helicopters Australia Pty Ltd where Commissioner Cambridge said: 8

“...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”.

[22] This was affirmed on appeal by the Full Bench. 9

[23] In considering what constitutes a ‘stoppage of work’ in City of Wanneroo v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, Williams C applied the dictionary definition, stating: 10

“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.”

[24] The COVID-19 pandemic has given rise to extraordinary circumstances and is an event that may cause a stoppage that the Respondent has no control over. However this is not in itself conclusive of whether there as been a stoppage of work in the circumstances of this matter. In the circumstances of this matter, the Respondent’s business was still operation, albeit without the Applicant in attendance due to his circumstances and because he lived within a LGA of concern. I find that there was not a stoppage of work from 20 September 2021 until 8 October 2021.

[25] Having found that the work has not stopped it is not necessary to consider if the stoppage is for a cause for which the Respondent cannot be held responsible. It is therefore not necessary to consider if the employer cannot usefully employ the employees concerned because of that circumstance

[26] Accordingly, the stand down was not one pursuant to s.524 of the Act.

[27] A Full Bench of the Commission considered whether the Commission has the power to make a monetary order arising out of a claim brought under s.526 of the Act in Carter v Auto Parts Group Pty Ltd. 11 The Full Bench said:

“Applying the principles stated in Re Cram to the Commission’s functions under s 526, it seems to us that while the Commission cannot make a monetary order in grant of a claim for an entitlement to wages said to be owing under an award or a contract of employment, the Commission is empowered to make a monetary order to resolve a stand down dispute based on its consideration of what is a fair outcome between the parties and other issues relevant to the industrial merits of the matters and, in doing so, is entitled to take into account whether, in its opinion, the stand down was authorised by s 524(1)”. 12

[28] The Full Bench also said:

“An approach whereby a dispute concerning a stand down is resolved by the making of a compensatory order consequential upon the formation of the opinion by the member that the stand down was not authorised by s 524(1), and which is made taking into account the business circumstances of the employer at the time of the stand down, any loss of income suffered by the employee, the efforts made by the employee to mitigate their loss, the current financial circumstances of the employer and employee and any other matter bearing upon the paramount consideration of fairness between the parties, would in our view be available as a matter of power under s 526.” 13

[29] Having regard to the findings of the Full Bench, I have considered the circumstances of this matter. While I have found that the stand down was not authorised by s.524 of the Act, I am required to consider fairness as between the parties in my determination of this matter.

[30] In the circumstances of this matter, during the three week period between 20 September 2021 and 8 October 2021, the Respondent was not able to allow the Applicant to work on premises due to the operation of a public health order imposed by the New South Wales Government. The Applicant was given the option to request to use his accrued leave entitlements during the stand down period and the Respondent provided him with correspondence to alert him to his possible eligibility to apply for the COVID-19 Disaster Payment administered through the Government, as well as providing access to other avenues of support. The Respondent’s decision to stand the applicant down was on account of extraordinary circumstances relating to the COVID-19 Pandemic and due to the Applicant’s decision not to provide evidence of his vaccination status or that he was an exempt person within the meaning of the public health order, which impacted his ability to leave his LGA to work at the Respondent’s premises.

[31] The Applicant was effectively unable to perform the inherent requirements of his role between 20 September 2021 and 8 October 2021, because he did not satisfy the requirements of a public health order which were a precondition for leaving the LGA for work, laid down by the New South Wales Government for persons in LGAs of concern. The Respondent enabled the Applicant to return to work as soon as he was able to on 11 October 2021 following the amendment of the public health order.

[32] Taking into account fairness between the parties, I find that the considerations of fairness weigh against the orders sought by the Applicant being made.

[33] Accordingly, while I find that the Applicant was not stood down in accordance with s.524 of the Act, for the reasons set out above, I decline to make the monetary orders sought by the Applicant.

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