Adam Richards v Automotive Brands Group Pty Ltd

[2020] FWC 4168

[2020] FWC 4168

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.526—Stand down

Adam Richards
v
Automotive Brands Group Pty Ltd
(C2020/4338)

DEPUTY PRESIDENT COLMAN MELBOURNE, 10 AUGUST 2020

Stand down dispute – application by former employee – no standing under s 526(3) – application also seeks payment order – judicial power – no jurisdiction – application dismissed

[1] This decision concerns an application brought under s 526 of the Fair Work Act 2009 (Act) by Mr Adam Richards in relation to an alleged dispute about the operation of Part 3-5 of the Act. The dispute concerns the decision of his former employer, Automotive Brands Group Pty Ltd, to stand down Mr Richards from 7 April 2020 to 15 May 2020, when his employment was terminated for reason of redundancy.

[2] Mr Richards says that the stand down was unlawful because none of the circumstances listed in s 524(1) applied during the relevant period. He says that the company’s reason for the stand down was the economic downturn caused by the COVID-19 pandemic, but that a business downturn is not a reason recognised by s 524, and that in any event the company was doing very well. Mr Richards further contends that he could have been usefully employed during the period of the stand down, had the company considered alternative arrangements, including working from home. The application asks the Commission to order that the company pay Mr Richards’ wages for the period of the stand down.

[3] The company raises two jurisdictional objections. First, it says that Mr Richards does not have standing to bring the application because he was not an employee of the company at the time his application was lodged. Secondly, it says that the application asks the Commission for relief which would require the exercise of judicial power, which is beyond the Commission’s jurisdiction.

[4] The application was listed for conference but did not resolve. I issued directions for the filing and service of submissions on the question of jurisdiction. I advised the parties that I proposed to determine the matter on the papers. Neither party objected to this course.

[5] Section 524(1) provides that an employer may stand down an employee during a period in which the employee cannot usefully be employed because of one of the following circumstances: industrial action; a breakdown of machinery or equipment; or a stoppage of work for any cause for which the company cannot reasonably be held responsible. Section 526(1) allows the Commission to deal with a dispute about the operation of Part 3-5, and s 526(2) states that it may do so by arbitration. The note to that section states that the Commission may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion.

[6] Section 526(3) limits the power of the Commission to deal with disputes about the operation of Part 3-5. It states that the Commission may deal with a dispute ‘only on application by any of the following’. Section 526(3)(a) then refers to ‘an employee who has been, or is going to be, stood down under subsection 524(1) (or purportedly under subsection 524(1))’. I understand Mr Richards to contend that he is a person described in s 526(3)(a). The other provisions in s 526(3) are clearly not relevant, as they relate to applications by unions, inspectors, and employees who have requested to take leave to avoid being stood down.

[7] Mr Richards lodged his application on 4 June 2020. His employment with the company ended on 15 May 2020. At the time he lodged his application, Mr Richards was not ‘an employee who has been stood down under s 524(1)’. He was a former employee who had been stood down in the past during his employment with his former employer. Mr Richards is therefore not a person who was able to make an application under s 526 and the Commission cannot deal with the application.

[8] In any event, the relief sought by the application is beyond the Commission’s jurisdiction. The Commission is not a court. It cannot exercise judicial power, and therefore cannot make binding determinations as to whether an employer has acted lawfully in standing down an employee. The Commission can neither declare that an employer has failed to comply with s 524, nor order that an employer pay wages due to an employee because of that non-compliance. Only a court can make orders of this kind.

[9] In his written submissions, Mr Richards asks that the Commission make a recommendation or express an opinion about the dispute. I have no power to do this, because the application was not made by a person specified in s 526(3), and the Commission therefore cannot deal with the application. Even if it were otherwise, I would not consider it appropriate to make a recommendation or express an opinion based on the limited materials before me.

[10] Former employees who contend that a stand down was improperly implemented by a former employer can of course sue for recovery of wages in a court. But they cannot prosecute a dispute in the Commission under s 526.

[11] For the above reasons, the application is dismissed for want of jurisdiction.

DEPUTY PRESIDENT

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