Albert Chun Meng Ch Ng v Skystar Airport Services Pty Ltd t/a Menzies Aviation
[2021] FWCFB 6040
•1 NOVEMBER 2021
| [2021] FWCFB 6040 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Albert Chun Meng Ch Ng
v
Skystar Airport Services Pty Ltd t/a Menzies Aviation
(C2021/4939)
VICE PRESIDENT HATCHER | SYDNEY, 1 NOVEMBER 2021 |
Appeal against decision [2021] FWC 3272 of Commissioner Platt at Adelaide on 30 July 2021 in matter number C2021/2543.
Introduction
[1] On 5 May 2021 Mr Ch Ng filed an application pursuant to s 526 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute concerning his stand down from 30 March 2021 from his employment with Skystar Airport Services Pty Ltd, which trades as Menzies Aviation, (Menzies). Menzies is a global ground-handling agent that provides services to a number of airlines at both the international and domestic terminals in Perth Airport. Mr Ch Ng was (at the time of the proceedings before the Commissioner) employed by Menzies as a Customer Service Operator at Perth Airport. Menzies’ business has been significantly affected by the COVID-19 pandemic, and this formed the background to Mr Ch Ng’s standdown.
[2] Mr Ch Ng’s application was allocated to Commissioner Platt and was heard on 9 June 2021. On 30 July 2021 the Commissioner published his decision 1 (decision), and made the following order (order):
“A. In accordance with the Decision issued on 30 July 2021, [[2021] FWC 3272] the Fair Work Commission orders Skystar Airport Services Pty Ltd T/A Menzies Aviation to pay Mr Albert Ch Ng the amount of $547.20, less applicable tax, within 7 days.” 2
[3] On 20 August 2021 Mr Ch Ng lodged a notice of appeal, appealing the decision and order made by the Commissioner. At the hearing on 21 October 2021, Mr Ch Ng represented himself and permission was granted under section 596(2)(a) of the FW Act for Mr Mossop to represent Menzies.
[4] Permission is required for the appeal. Under s 604(2) of the FW Act, we are required to grant permission to appeal if we are satisfied that it is in the public interest to do so. We may otherwise grant permission on discretionary grounds.
[5] For the reasons which follow, we are not satisfied that the grant of permission to appeal would be in the public interest, nor do we consider that there are discretionary grounds justifying the grant of permission.
The decision
[6] In his consideration of Mr Ch Ng’s application, the Commissioner found that:
• Mr Ch Ng accepted that two earlier standdowns were legitimate; 3
• Mr Ch Ng was rostered to work from 3 May 2021 and this coincided with the end of his standdown; 4
• he was only able to perform “Malindo work” (that is, work associated with a particular airline) plus arrivals work; 5
• an arrangement whereby Mr Ch Ng was allowed to provide for the care of his children by restricting his hours meant that he could not perform work outside those hours; 6
• Mr Ch Ng’s acceptance that the two earlier standdowns were legitimate infers acceptance that for these periods there was a stoppage of work for a cause that Menzies could not reasonably be held responsible for and that he could not usefully be employed during this period; 7 and
• the operation of Menzies was considerably impacted by the COVID-19 pandemic prior to 30 March 2021, flight departures in 2021 were consistently 13.5% of the January 2020 level and, in March 2021, JobKeeper support from the Federal Government ceased. 8
[7] On the basis of these findings of facts, the Commissioner concluded:
“[32] I am satisfied that the circumstances that Menzies faced at 30 March 2021 arose as a result of the continued COVID-19 pandemic, and were circumstances for which Menzies could not reasonably be held responsible. The evidence establishes that the frequency of flights serviced was significantly impacted and this had the effect of substantially reducing the shifts that were available to be worked.
[34] I am satisfied that Menzies was entitled to stand down employees in accordance with s.524 between 30 March 2021 and 2 May 2021.”
[8] The Commissioner went on to say that he was most concerned with the question posed by s 526(4) of the FW Act, and that the evidence showed that Menzies issued rosters which preserved so far as possible the hours of the more diversly skilled employees to the detriment of employees in the position of Mr Ch Ng. 9 The Commissioner accepted that the only airline for which Mr Ch Ng was qualified (Malindo) was not operating during this period, but found that there remained arrivals work which he could have performed.10 He concluded that Menzies’ decision not to offer any work at all to Mr Ch Ng while other employees received full hours imposed an unfair burden on him and did not result in a fair outcome.11 The Commissioner reasoned the considerations in s 526(4) would have been met if Mr Ch Ng had been rostered to perform 20% of his ordinary hours12 and made an order requiring Menzies to make a compensatory monetary payment to resolve the dispute.13
The appeal
[9] Mr Ch Ng’s appeal grounds are all founded upon the proposition that s 524(1)(c) could not have been satisfied because the Commissioner did not specifically find that there had been a “stoppage of work”. Mr Ch Ng relied on numerous references in the evidence, and in the decision to work being performed by some employees, albeit at dramatically reduced levels, to show that no “stoppage” occurred.
[10] Menzies submitted that there was no practical utility in granting permission to appeal because Mr Ch Ng was substantially successful at first instance and he obtained discretionary relief that is not likely to be affected even if Mr Ch Ng is successful on appeal. Menzies submitted that the Commissioner did not need to make an explicit finding that there was a stoppage of work in order to deal with a dispute under s 526 and make orders in arbitration. Menzies submitted that no matters of public guidance or the like arise in this matter that would support granting permission to appeal.
Consideration
[11] Our decision to refuse permission to appeal is for three reasons. First, we accept that the Commissioner did not make an explicit finding that there was a “stoppage of work” within the meaning of s 524(1)(c) in the decision. However, while the question of whether a standdown is authorised under s 524 will always be a relevant consideration in a dispute brought under s 526, it was not a necessary prerequisite for the Commissioner to make an express finding concerning the existence of a “stoppage of work” in order to make an order under s 526 in resolution of the dispute.
[12] The Commissioner’s decision must be read fairly, as a whole, and not with an eye attuned to detect error. 14 The Commissioner was clearly satisfied that during certain periods Mr Ch Ng could not be usefully employed for his usual 19 hours per week and that this was because of a stoppage work for which Menzies could not be held responsible. Further, the evidence clearly demonstrates that the Commissioner was correct in this respect. It is not in contest that, during the period of the standdown the subject of the dispute, Malindo, the airline for which Mr Ch Ng had been trained, ceased flying to and from Perth Airport altogether. As was made clear by the Full Bench in Peninsula Grammar School v Independent Education Union of Australia,15 a stoppage of work for the purpose of s 524(1)(c) need not be a stoppage of work in the employer’s business operations:
“[37] …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. Treating stoppages of work as eiusdem generis as strikes and breakdowns in machinery, 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.”
[13] Here it is apparent on the evidence that Mr Ch Ng did not have useful work to perform to fill his 19-hour part-time engagement because there was a stoppage of the Malindo work as a result of the COVID-19 pandemic, for which Menzies was not responsible. Thus, there would be no utility in granting permission 16 on the basis that the Commissioner failed to find that there had been a “stoppage of work” under s 524(1)(c) because, on any redetermination of the matter, such a finding would inevitably be made.
[14] Second, in making his order the Commissioner took into account fairness between the parties as required by s 526(4), formed the view that Menzies’ allocation of duties imposed an unfair burden and did not result in a fair outcome, and assessed an appropriate monetary amount to compensate for this. Mr Ch Ng does not allege that the Commissioner’s exercise of the discretion miscarried in this respect.
[15] Although it was not raised by Mr Ch Ng, counsel for Menzies at the hearing of the appeal properly identified that there was an error in the Commissioner’s calculation of the compensation amount because he proceeded on the basis that the standdown ended on 3 May 2021 when in fact it ended on 9 May 2021. He undertook on behalf of Menzies to make a further payment to Mr Ch Ng to reflect this further standdown period. This would make up the balance of a total amount of $656.64 calculated in accordance with the Commissioner’s methodology. Taking into account this undertaking, there is again no utility in granting permission to appeal since no proper basis is disclosed for altering the outcome determined by the Commissioner.
[16] Third, the appeal raises no legal or policy issue of importance or general application.
Conclusion
[17] Accordingly, and on the basis of the undertaking made by Menzies, permission to appeal is refused.
VICE PRESIDENT
Appearances:
A Ch Ng on his own behalf.
A Mossop of counsel for the respondent.
Hearing details:
2021.
Sydney (by video-link):
21 October.
Printed by authority of the Commonwealth Government Printer
<PR735374>
1 [2021] FWC 3272
2 PR732277
3 [2021] FWC 3272 at [25]
4 Ibid at [26]
5 Ibid at [28]
6 Ibid at [29]
7 Ibid at [30]
8 Ibid at [31]
9 Ibid at [35]
10 Ibid at [35]-[36]
11 Ibid at [41]-[42]
12 Ibid at [44]
13 Ibid at [46]
14 Tenterfield Care Centre Ltd v Wait[2018] FWCFB 3844 at [29] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259 at [24]
15 [2021] FWCFB 844, 305 IR 139
16 See e.g. New South Wales Bar Association v McAuliffe[2014] FWCFB 1663, 241 IR 177 at [28]; Singh v Sydney Trains [2020] FWCFB 884 at [29]; Clermont Coal Operations Pty Ltd v Brown and Others[2015] FWCFB 2460 at [18]
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