Australian Municipal, Administrative, Clerical and Services Union v Helloworld Travel Limited, Viva Holidays Ii Limited

[2021] FWC 6535

[2021] FWC 6535

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.526—Stand down

Australian Municipal, Administrative, Clerical and Services Union
v
Helloworld Travel Limited, Viva Holidays II Limited
(C2021/6652; C2021/7375; C2021/7376; C2021/7378; C2021/7379; C2021/7380; C2021/7381; C2021/7383; C2021/7385; C2021/7386; C2021/7387; C2021/7652)

DEPUTY PRESIDENT COLMAN MELBOURNE, 8 DECEMBER 2021

Stand down – impact of COVID-19 on the travel sector – whether employees could be ‘usefully employed’ – no residual discretion to consider fairness of stand down that meets requirements of s 524 – claim for compensation for economic loss in substance a claim for wages seeking purported exercise of judicial power – discretionary reasons to refuse orders in any event

[1] This decision concerns an application made by the Australian Municipal, Administrative, Clerical, and Services Union (ASU) under s 526 of the Fair Work Act 2009 (Act) on behalf of twelve employees employed by Helloworld Travel Limited (Helloworld) and Viva Holidays II Limited (Viva) who were stood down from their employment on or around 23 March 2020 until 12 November 2021, or during various periods between those dates.

[2] The ASU contends that the stand downs did not meet the requirements of s 524 of the Act, which allows an employer not to pay an employee if the circumstances set out in that provision are present. The union contends that, contrary to the contention of the employers, employees could have been usefully employed, and there was no ‘stoppage of work for any cause for which the employer cannot reasonably be held responsible’, as required by s 524(1)(c). Alternatively, the ASU contends that, even if the stand downs did meet the requirements of s 524(1), the Commission should determine that they were unfair, because the employers did not consult with the employees about the stand downs, did not allocate available work fairly among all of the relevant employees, and because the stand downs were of very lengthy duration.

[3] The ASU contends that there is a dispute between the union and the employers over the operation of Part 3-5 in the present circumstances, that the Commission’s powers under s 526 to resolve such disputes are therefore enlivened, and that the Commission should resolve the present dispute by way of arbitration and determine that the employers did not stand down the employees in accordance with s 524, or alternatively, that they did so unfairly. The application as filed sought orders from the Commission that would require employees to be returned to normal duties however the stand downs have since ended and the ASU no longer seeks return to work orders. Instead, the union asks the Commission to make orders requiring the employers to pay employees compensation that is proportionate to their economic loss arising from the stand downs.

[4] The employers contend that the employees were properly stood down in conformity with the requirements of s 524. They maintain that the employees were not able to be usefully employed during the periods of their stand down, and that this was because of the operational and financial impact of the COVID-19 pandemic on their businesses, which, especially in respect of international travel, caused stoppages of work for the purpose of s 524(1). The employers contend that in circumstances where a stand down has met the requirements of s 524, there is no residual power under s 526 for the Commission to deal with the dispute and to make orders by reference to whether the stand downs were fair. They further contend that the ASU’s claim for compensation is beyond the power of the Commission because it is in substance a claim for wages and asks the Commission to purport to exercise the judicial power of the Commonwealth. The employers contend that in any event there would be powerful discretionary reasons for the Commission to decline to make compensation orders in the present case.

[5] The Commission’s role under s 526 is to deal with a dispute about the operation of Part 3-5, either by arbitration or by any of the other means of dispute resolution referred to in the note to s 526(2). The Commission has a discretion to adopt the mode of dispute resolution that it considers to be appropriate. There were competing contentions in the present matter as to how the Commission should deal with the dispute, particularly in light of the employees’ return to work in mid-November 2021. As the ASU maintained its claim for compensation orders, which could only be made by the exercise of arbitration power, I consider it fair and appropriate to determine the application by arbitration.

Statutory framework

[6] Section 524 of the Act sets out the circumstances when an employer may stand down an employee under that provision, and what the consequence of a stand down will be. It states:

“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.

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.”

[7] Section 526 authorises the Commission to deal with disputes about the operation of Part 3-5. It provides:

“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;

(c) an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (a) or (b);

(d) an inspector.

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

[8] Section 527 of the Act provides that a person must not contravene an order made by the Commission dealing with a dispute about the operation of Part 3-5. An order of the Commission under s 526 is enforceable under Part 4-1 of the Act.

Background and evidence

[9] Helloworld and Viva are related companies that provide domestic and international travel products and services to the public. Helloworld is a travel distribution company. Viva is a land travel wholesaler which provides accommodation packages across the Helloworld Travel retail agency network. The twelve employees who are the subject of the present matter are employed by the companies in various capacities that are described further below. Ms Leila Nicolopoulos is employed by Helloworld Services Pty Ltd (Helloworld Services) and is covered by the Helloworld Services Pty Limited Agreement 2015 (Helloworld Agreement). I note that Helloworld Services was not referred to in the originating application, however at the hearing Helloworld advised that it did not object to the Commission allowing an amendment to the application and waiving the requirement for compliance with the rules, and I do so. The other eleven employees are employed by Viva and are covered by the Australian Services Union (Qantas Holidays Limited) Agreement 3 (Qantas Holidays Agreement), which became binding on Viva as a result of a transfer of business under Part 2-8 of the Act. Neither the Helloworld Agreement nor the Qantas Agreement contains a stand down provision, nor do the employees’ contracts of employment contain such provisions. The significance of this is that the statutory right of the employers to stand down employees in accordance with s 524(1) is not excluded by s 524(2).

[10] The COVID-19 pandemic reached Australia in early 2020. On 23 March 2020, the companies wrote to the twelve employees, and many others, and advised them that, because of the impact of the pandemic on the travel industry, they could not be usefully employed and would therefore be stood down until further notice. Some employees, including those in the land contracting team, were stood down from March 2020 until mid-November 2021, a period of some 18 months. Others, including those in the business systems application team, were recalled to work in March 2021 but were again stood down effective in June 2021 until mid-November 2021. All employees were recalled to work effective from 15 November 2021.

[11] The ASU filed witness statements from each of the 12 employees. They were not required for cross-examination. It will be convenient to consider the evidence of these employees by reference to the organisational groups in which they work. First however, I will briefly summarise the evidence of Mr Trifonidis, Helloworld’s general manager of human resources, about the impact of COVID-19 on the companies. Mr Trifonidis filed two witness statements and was cross-examined. He said that by 23 March 2020, the Helloworld group had experienced a drop in bookings of 90% on the previous year’s levels, and that as a result it implemented immediate cost reduction measures. It decided to make 275 positions redundant, to stand down 1300 employees across the group, to require the executive management team and senior leaders either to take no salary or accept a salary cut of between 15% and 40% (some senior managers would forego salary in certain months), and to require directors to work for no pay. Mr Trifonidis said that on 31 August 2020 Helloworld announced a statutory loss after tax of $70 million, arising from the limited possibility for travel due to the pandemic and the government responses to it. He said that by the end of October 2020, revenues had reduced by 87% on the previous year, and by 98% as against the year before that. In February and April 2021, revenues remained down by 85% and 80% respectively. In August 2021, Helloworld announced a loss of $35.9 million.

[12] I accept Mr Trifonidis’ evidence about these matters. It is clear, and I find, that the onset of the COVID-19 pandemic had a very severe financial and operational impact on Helloworld and Viva. It is open to the Commission to have regard to its industry experience in the determination of a matter before it. It is plain to me, based on my experience and the matters that have come before me over the past 18 months, that the pandemic brought the travel industry to a near standstill as freedom of movement was restricted to prevent the spread of the virus. This saw a precipitous decline in demand for travel-related services.

[13] The pandemic has also had a profound effect on employees of businesses in the travel industry. Stand downs have been very common. Employees were stood down for protracted periods of time, and the financial burden on many employees has been immense, despite the government support provided by JobKeeper and other measures. This has certainly been the case in the present matter. The evidence provided by the employees is detailed and gives a clear account of the difficult circumstances they have endured over the past eighteen months. Employees reading this decision may be disappointed not to see more of their evidence recorded in the following brief summary, but it will not be necessary to set out further details, for reasons that I will explain below.

The business systems application team

[14] Four of the twelve employees are employed in the companies’ business systems applications team (BSA), which is responsible for maintaining the ‘ReadyRooms’ system, an online booking platform used by travel agents to purchase travel products, as well as ‘Calypso’, an integrated travel software system. Ms Fonny Tedjakusmana, a senior business analyst based in Sydney, was stood down from 24 March 2020 to 26 March 2021, and again from 30 June 2021 to 12 November 2021. On returning to work in March 2021, she was busy working on a replacement to ReadyRooms called Excite Holidays, a Greek booking system acquired by the companies the previous year. She worked with an Athens-based team to ensure the new system would be ready to launch in October 2021. Ms Tedjakusmana was shocked to learn in June 2021 that she would be stood down again, given how busy she had been. Several other team members remained at work. On 31 August 2021, Ms Tedjakusmana took up work that had been arranged by Helloworld in a COVID-19 vaccine call centre. Ms Tedjakusmana said that there was no consultation about her stand down or its extension. She returned to work on 15 November 2021.

[15] Mr Gordon Pinto is a business analyst based in Sydney whose role is to test Helloworld’s website and programmes. Mr Pinto was stood down from 24 March 2020 to 26 March 2021, and from 30 June 2021 to 12 November 2021. Mr Pinto said that during the first stand down, his ordinary work continued to be done by employees in Melbourne and Athens. When he was recalled in March 2021, he worked on transitioning the ReadyRooms platform and testing the new system. Mr Pinto was stood down again from 30 June to 6 October 2021. On 12 August 2021, the company offered Mr Pinto work in a call centre, but he was unable to accept it because he lived in a designated ‘red zone’ at the time. On 13 October 2021, the company offered Mr Pinto a four to six week role working on a data mapping job, about which he sought further information, but did not receive a response. Mr Pinto returned to work on 15 November 2021.

[16] Ms Monica Diaz, an application support team leader, and Ms Jamie-Lee Peterson, a senior support analyst, are both based in Sydney and provide technical support to the users of the company’s applications. Ms Diaz was stood down from 24 March 2020 to 29 March 2021, and from 30 June 2021 to 12 November 2021. Ms Diaz said that when she was recalled to work in March 2021, there was less work than previously, because the two systems that she had supported were being decommissioned, and that therefore only ‘general support’ work was required. Ms Diaz asked her manager if she could be involved in the work to develop the two new replacement systems but was told that this work had been given to the Melbourne-based team. Ms Diaz understood that the Melbourne team was struggling to manage their workload at that time, and that the work could have been shared between Sydney and Melbourne. Ms Diaz said that the company’s decision to stand her down again in June 2021 was not discussed with her. She said that two employees in her group continued to work during the second stand down. On 11 August 2021 the company arranged for her to undertake a role in a call centre providing assistance to the Victorian Department of Health, which she accepted. Ms Diaz returned to work on 15 November 2021. Ms Peterson said that after having been stood down initially in March 2020, she commenced maternity leave in August 2020, and upon her return in August 2021 was stood down until 12 November 2021. Ms Peterson said that she was not consulted about the extension of the stand down. She returned to work on 15 November 2021.

[17] Mr Trifonidis gave evidence that the projects that the BSA team had been working on were halted in March 2020 as a result of greatly reduced travel and revenue. A skeleton staff was retained in the operations part of the BSA team, working reduced hours. The small remaining amount of enhancement and programming work was absorbed by an existing software development provider, Tourism Technology, whose core service relied on skills not available within the companies’ business. Mr Trifonidis said that the BSA team was not involved in the development or support of the new ReadyRooms platform, which, though now branded ‘ReadyRooms’, was a different system serviced by a team in Athens. Mr Trifonidis denied any suggestion that work had been reallocated to Melbourne and Athens away from the Sydney-based BSA team. He said that the four employees, like others in the BSA team, could not be usefully employed during the periods they were stood down. Mr Trifonidis said that the two employees who continued to work during the period of the stand downs, and who were referred to by Ms Tedjakusmana, had strategic and highly technical roles directed at server infrastructure (Mr Hartung) and application architecture and software development (Mr Woodyard), whereas Ms Tedjakusmana’s role was a non-technical business analyst role.

Land contracting team

[18] Ms Michele Wilson, Ms Kirsten Denham, Ms Katrina Strickland and Ms Michele Summerson work in the land contracting team (LCT) based in Sydney. The LCT negotiates and finalises contracts and travel product inventory with hotels and tour companies. The four employees were stood down from 25 March 2020 until 12 November 2021. Ms Wilson said that on 2 April 2020, the company offered her alternative work on a government Coronavirus hotline but on advice from the union she sought certain changes to the offer, which the company did not accept, and the offer was later withdrawn. Ms Wilson said that her stand down was extended on six occasions: from 1 June 2020 to 31 July 2020; from 1 August 2020 until 31 October 2020; from 1 November 2020 to 28 March 2021; from 29 March 2021 to 30 June 2021; from I July 2021 to 5 October 2021; and from 6 October 2021 to 12 November 2021. Ms Wilson said that in 2021, two employees in the LCT remained at work, seconded to the ‘domestic team’, but that she was not approached by the employer about performing other work. Ms Denham, Ms Strickland and Ms Summerson were stood down on 24 or 25 March 2020. Their stand downs were extended on or about the dates when Ms Wilson’s stand down was extended. In April 2020, each of them commenced working in a COVID-19 call centre but after a short time they requested changes to their working arrangements on the union’s advice; after this, they were offered no further work at the call centre. The employees said that during the long period of their stand down, various other employees in their team had continued to work, including the head of land contracting, a contract manager, and a contracting co-ordinator.

[19] Mr Trifonidis said that since 2016, the LCT in Sydney had undertaken international contracting, whereas domestic contracting was undertaken in Melbourne. He said that the companies had had no supplier contracts for international destinations since the end of December 2019, nor any activity with international suppliers since March 2020, and that its first engagement with overseas suppliers requesting contracts occurred in mid-October 2021, which led to the recall of the LCT to work. Mr Trifonidis said that prior to this there was no useful work for team members to perform, save for the three employees who were seconded from the international contracting areas to the domestic contracting area. He said that these three employees were selected because of their product and systems knowledge and past experience in the role, which meant they were familiar with the domestic system, which he said was different from the international system.

[20] In reply statements, Ms Denham and Ms Strickland said they had more domestic contracting experience than the secondees, and Ms Summerson said that she had no less experience. Ms Strickland said that in November 2021 she was trained on the domestic contracting system in two one-hour sessions (Mr Trifonidis denied this), suggesting that she could easily have been redeployed to domestic work. Ms Wilson also said that the three secondees had less experience than her in the contracting department and that in any event the international and domestic contracting processes are virtually the same. She said that there was no reason why she could not have been deployed on or rotated through such work.

Inventory team

[21] Ms Anita Giananey is an assistant in the inventory team, which is responsible for ensuring that offerings from the companies’ suppliers match products sold by the companies. She liaises with hotels and suppliers, including negotiating and responding to requests. Ms Giananey was stood down from 24 March 2020 until 31 May 2020. This was extended to 31 July 2020. Ms Giananey was offered work in a government call centre but declined it because it was not possible to work from home and Ms Giananey was concerned about infecting her elderly mother with COVID-19. Ms Giananey returned to work pursuant to a JobKeeper directive on 17 June 2020 working three days a week, rather than her usual five days, undertaking international inventory work. From 7 October 2020 her hours were further reduced to two days a week. Ms Giananey returned to her normal full time duties on 29 March 2021. The month of June 2021 was particularly busy, as domestic travel was booming. However, Ms Giananey was again stood down from 30 June to 12 November 2021.

[22] Mr Trifonidis said that Ms Giananey’s role was dependent on the suppliers with which the companies negotiated for travel and leisure contracts, and that the lack of transactions with international suppliers meant that there had been no work to be done in updating or loading inventory. He said that 99% of inventory for domestic bookings was automated through a system called ‘channel manager’, and that there was no inventory work for the inventory team to do. In her reply statement, Ms Giananey said that the channel manager was only introduced in March 2021, and that it still required manual intervention.

Documentation team

[23] Ms Vanessa Hagger is a co-ordinator in the documentation team managing four people. The documentation team processes ticket and travel documentation, such as air tickets and accommodation documents, for international and domestic travel. Ms Hagger was stood down from her employment from 24 March 2020 for an initial period that was extended on six further occasions, ending finally until 12 November 2021. Ms Hagger said that it was her understanding that the employees she manages in the documentation team had continued to work throughout the stand down period.

[24] Mr Trifonidis said that, given the closure of international borders, Helloworld stopped issuing travel documentation for both domestic and international travel from March 2020 and that the documentation team was not required. Mr Trifonidis said that other members of the documentation team were transferred or seconded to other areas. One was assigned permanently to the finance team.

Pricing department

[25] Ms Roslyn Gibbons is employed as an assistant in the pricing department. Her role is to ensure that prices are correctly displayed to travel agents, and to adjust prices based on changing exchange rates, margins and special offers. Ms Gibbons and a colleague in the department were stood down from 29 March 2020 to 1 December 2020. From 2 December 2020, they were directed to perform work in the finance division processing refunds for travel agents to pass on to clients. Ms Gibbons said that this was different from her usual work and involved a steep learning curve, but she was able to do the work. From 24 February 2021, Ms Gibbons was again stood down, and remained so until 12 November 2021. Ms Gibbons’ colleague from the pricing department continued to work during this period. Ms Gibbons said that she was shocked to be stood down again and understood that the finance team had remained busy with the refund processing work she had been undertaking between 2 December 2020 and 23 February 2021.

[26] Mr Trifonidis said that the work of the pricing department stopped because of the effects of the pandemic, and that the work Ms Gibbons was subsequently given ceased to be needed, as Helloworld was up to date with the processing of refunds. He said that another member of the pricing department was also stood down but took up a secondment opportunity in the finance department undertaking work such as accounts payable. He said that Ms Gibbons was considered for such an opportunity but was not regarded as being able to perform the role to the required standard. In her reply statement, Ms Gibbons said that the work performed by the secondee was the same as the work she had performed, and that she had never been told that her work processing refunds was not to the required standard. She also said that she had recently been recalled to work in the finance team.

Reservations

[27] Ms Leila Nicolopoulos is employed as a reservation agent. Her role requires her to complete quotes and bookings with travel agents, focusing on air travel and cruising. In February 2020, she was transferred to the finance department to assist with processing refunds for cruises, and on 25 March 2020 she was stood down. Shortly afterwards, and until June 2020, the company arranged alternative work for Ms Nicolopoulos at the Coronavirus national helpline. She then returned to the finance department to work on refunds for cancelled holidays. Ms Nicolopoulos was stood down again from early September 2020, but in early October 2020 she was asked to resume work in the finance department working on refunds. On 29 June 2021 Ms Nicolopoulos was again stood down. Mr Trifonidis said that Ms Nicolopoulos and colleagues in similar positions were stood down because they could not be usefully employed due to the stoppage of work constituted by the fact that there were no cruise operations in Australia at the time. Ms Nicolopoulos was placed on secondment to the finance team to assist with processing refunds for cruises, and to perform work at government call centres.

Submissions of the ASU

[28] The ASU contended that the employees had not been stood down in accordance with s 524 of Act, because the evidence did not disclose that there had been a ‘stoppage of work’. It submitted that although the companies’ business had been severely constrained by the pandemic, it has not ceased to operate completely, and that the Commission should not assume that there had been a stoppage of work simply because the COVID-19 pandemic had seriously impacted the travel sector. It said that the companies bore the onus of proof to establish that the circumstances in s 524 existed, and that if they could not persuade the Commission that this was the case, the employers’ defence to the union’s application must fail.

[29] The ASU said that the employers had not demonstrated that the employees could not be usefully employed. It contended that the concept of ‘useful’ work was to be contrasted with work that is ‘gainful’ or ‘profitable’ or even work that is immediately required by the employer; it said rather that if there is some work available for an employee which would provide a benefit to the employer, the employee is able to be usefully employed and s 524 is not engaged.

[30] The ASU submitted that the employees in each of the teams could have been usefully employed. Other employees in these teams had been retained to work. In the BSA team, some employees had continued to provide technical support to the remaining users of the applications, and the team had continued to implement a large project involving the migration of bookings onto the new systems. Work could also have been assigned to the four employees from Melbourne and Athens. The ASU said that the four employees in the LCT team could also have been usefully employed because several of their colleagues had continued to perform work maintaining relationships with international suppliers and dealing with contracts for domestic destinations, work which could have been shared among all employees. The union said that the companies’ distinction between domestic and international work appeared to be a variable one and not something that would prevent an employee usually deployed on international work from being assigned domestic work. The ASU contended that the employees in the other teams could have been allocated useful work that was assigned exclusively to others, but no attempt was made to share the available work amongst the team, or to provide the employees with any training required to undertake ongoing work.

[31] The ASU further contended that, even if the Commission were to accept that there was no useful work for the twelve employees to do, the companies had failed to established that this circumstance had been caused by any stoppage of workfor which the companies could not reasonably be held responsible. It contended that, although the adverse effect of the pandemic on the industry and the companies had been significant, it was apt to describe this effect as a downturn of work, not a stoppage of work. For this reason also, the ASU contended that the stand downs of the twelve employees had not met the requirements of s 524 and were unlawful.

[32] In the alternative, the ASU contended that, if the Commission concluded that the companies had experienced a stoppage of work that had resulted in there being no useful work for the employees to do, the stand downs were nevertheless unfair because the companies had failed to consult with employees before and during the stand down, work had been allocated unfairly between employees in the relevant work groups, and alternative duties had in some cases been offered only on condition of employees accepting lower pay. Further, it contended that the stand downs had been of indefinite duration and were very protracted, resulting in employees sustaining significant financial hardship. It contended that if the Commission were to find that the employees were lawfully, but unfairly, stood down, it could and should proceed to award compensation.

[33] The ASU submitted that the appropriate remedy was for employees to be compensated for the economic loss sustained as a result of the unlawful stand downs; or, if the Commission were to conclude that the employees were lawfully but unfairly stood down, it should order the companies to pay employees compensation in an amount that was proportionate to the work they would have done had work been fairly allocated. The ASU contended that the Commission possessed the power to make orders requiring the companies to pay compensation to the employees and should exercise its discretion to do so.

[34] As to power, the ASU recognised that the Commission cannot purport to exercise judicial power by making orders in the nature of a binding declaration of right or enforcing a right to wages due under contracts or industrial instruments but said that it was not asking the Commission to exercise such power. Instead, it sought the exercise of arbitral powers to create new rights in the form of compensation in favour of employees who had been the subject of an unlawful or unfair stand down. The ASU submitted that the power of the Commission to make awards of compensation under s 526 had been recognised by the decision of the Full Bench of the Commission in Carter v Auto Parts Group Pty Ltd[2021] FWCFB 1015 (Carter), where at [27] the 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).”

[35] As to the discretionary reasons that would favour the granting of an order for compensation, the ASU contended that the twelve employees had suffered economic loss, in respect of which they had given evidence in their witness statements, and that it was fair and appropriate that employees should receive compensation for this loss or for loss associated with work that they ought to have been allocated, particularly in circumstances where the stand downs were attenuated with the various other elements of unfairness identified by the ASU. The union submitted that each of the employees had given evidence about the wages that they would have earned if they had not been stood down, and had indicated other monies received, such as JobKeeper payments, which could reasonably be deducted from amounts of lost wages, and that there was a sufficient evidentiary basis for the Commission to make orders of compensation for each of the twelve employees.

Submissions of the companies

[36] The companies contended that they stood down the twelve employees in accordance with s 524(1)(c). They submitted that employees could not be usefully employed during the stand down periods, and in any relevant instances when employees could be usefully employed, they were recalled to work. They contended that the reason for which employees were not able to be usefully employed was because of stoppages of work affecting the relevant areas of the companies’ business caused by the effects of the COVID-19 pandemic, and that this cause was one for which the companies could not reasonably be held responsible.

[37] The companies contended that the evidence of Mr Trifonidis showed that the COVID-19 pandemic and the government responses to it had a devastating effect upon the Australian travel industry and the respondents’ business, which could not fairly be described as a mere downturn of business. The employees could not perform their normal duties or otherwise be usefully employed, save for some exceptions where alternative duties of benefit to the employer had been identified. The companies submitted that these exceptions demonstrated that they had endeavoured to find useful work for employees to perform, with some success, as the employees’ own evidence had shown.

[38] The companies contended that the unavailability of useful work was a circumstance that arose because of stoppages of work affecting various business areas due to the unprecedented pandemic and that the stoppages in each relevant area had been explained by Mr Trifonidis. Work that the particular employees would usually have performed was not required as a consequence of border closures and travel restrictions, both internationally and domestically, in response to the pandemic (as to which generally the companies referred to the decision of the Supreme Court of Victoria in Cotterill v Romanes [2021] VSC 498, [1], [13] – [19]). The companies submitted that it was obvious that they could not reasonably be held responsible for the stoppages of work in these circumstances.

[39] As to the meaning of ‘stoppage of work’, the companies relied on the decision of the Full Bench of the Commission in ThePeninsula School t/a Peninsula Grammar School v Independent Education Union of Australia [2021] FWCFB 844 305 IR 139 (Peninsula School) at [37], where the Bench concluded that a stoppage simply means a cessation of working activity, and that it was not necessary that stoppages occur in the employer’s own business or the parts of the business in which employees were stood down.

[40] The companies submitted that, where a stand down meets the requirements of s 524, there is no occasion for the granting of any relief based on considerations of fairness; it was only where the Commission concluded that a stand down failed to meet the requirements in s 524 that the Commission would be required to take into account fairness between the parties in its deliberations as to the appropriate remedy that might be ordered in settlement of the dispute.

[41] The companies further contended that the Commission has no power to grant an order for compensation in the present circumstances, because the ASU’s application effectively seeks damages for an alleged failure by the companies to meet their legal obligations to pay wages to their employees. The ASU’s application was, in substance if not in form, a plea for the Commission to order unpaid wages. The union had clearly described the compensation it sought as payment for economic loss resulting from an unlawful stand down. Only a court could order compensation of this kind. The companies contended that the decision of the Full Bench in Carter was per incuriam and had misapplied the decision of the High Court in Re Cram, but that in any event the Bench had recognised, at [25], that it is necessary for the Commission carefully to consider the nature of a claim for payment and identify the basis on which it is being asked to order payment. The companies contended that when the ASU’s claim was subjected to such scrutiny, it was clear that the application sought payment of wages due and invited the Commission to purport to exercise judicial power.

[42] Finally, the companies contended that, if the Commission were to find that the stand downs had not complied with s 524(1) of the Act, and that it was within the Commission’s power to make an order requiring the companies to pay employees the compensation sought by the union, the Commission should decline to do so for discretionary reasons. They submitted that the ASU had chosen to make its application some seventeen months after the stand downs began, whereas had the union acted promptly, any compensation could have been averted or minimised. The companies further contended that the Commission should take into account that the companies remained in a financially damaged position, and that the effect of the stand downs, which are now over, had after all been to preserve the jobs of the twelve employees.

Consideration

[43] Section 524(1) permits an employer to stand down an employee during a period in which the employee cannot usefully be employed because of a stoppage of work for any cause for which the employer cannot reasonably be held responsible. Relevantly in the present case, three elements must be established: that an employee cannot be usefully employed; that this is because of a ‘stoppage of work’; and that the cause of the stoppage is one for which the employer cannot reasonably be held responsible. Each of these three elements is to be assessed objectively, based on the evidence before the Commission. I adopt the approach to these elements set out by the Full Bench in Peninsula School at [33], where it was noted that, when assessing whether a particular employee has been stood down in accordance with s 524, it is sensible to ask first whether the employee can usefully be employed. As the Full Bench said at [36], there would be some logical difficulty in seeking to establish the cause of a circumstance, the existence of which had not been verified. In short, one should determine whether employees can be usefully employed before considering whether there is a stoppage of work.

[44] Section 526 confers on the Commission power to ‘deal with a dispute about the operation of this Part’. It is necessary to characterise a dispute to ascertain whether it is a dispute of the relevant kind. Part 3-5 is concerned with the right of an employer to stand down employees, and not to pay them if particular conditions have been met. A dispute about the operation of the Part will typically concern whether or not the various conditions in s 524(1) have been met, and if not, what if any remedy should appropriately be ordered in resolution of that dispute. Remedies that lie squarely within the bounds of the Commission’s jurisdiction would be orders concerning the work that should be provided to employees in cases where the Commission has determined that a stand down of employees does not meet one or more of the requirements of s 524, for example, an order that employees resume their normal duties from a particular date, or that employees be assigned to certain duties on which the Commission considers they can be usefully employed, based on the evidence in the proceedings.

[45] In my view, the operation of Part 3-5 is substantially concerned with the current availability of work and whether a stand down should commence or continue. In this regard, I note that those who have standing to bring a dispute to the Commission under s 526 include an employee who ‘has been, or is going to be’ stood down, and an employee who ‘has made a request to take leave’ to avoid being stood down (see s 526(3)). Such employees may wish to seek to persuade the Commission that there is or will be no stoppage of work, or that there is or will be useful work for them to perform, and that the Commission should make an order requiring the employer to allow them to work. It seems to me on the other hand that payment is simply a consequence of the application of s 524. If the conditions in s 524(1) are met, the employer is not required to make payments to employees (s 524(3)). If the conditions are not met, the employer must meet its payment obligations under the contract of employment and any applicable industrial instrument.

[46] Further, the use of tense in Part 3-5 would appear to me to suggest that the Part is concerned with current stand downs. The primary question in s 524(1) is whether an employee ‘cannot usefully be employed’ (present tense). Section 526(3) then confers standing on an employee ‘who has been stood down’ (passive use of the present perfect tense). The present perfect tense is one that generally suggests a connection between the past and the present, rather than an event that was completed in the past. This shade of meaning in the use of tense is particularly discernible in the context of s 526(3), because the section does not separately confer standing on a person who ‘is stood down’; presumably, this is because such a person is covered by the standing conferred on a person who ‘has been stood down’, that is, a person who has been stood down and remains stood down. Such a person may bring an application under s 526. So too may a person who ‘is going to be stood down’, as s 526(3)(a) makes clear. But no standing is given to a person who was stood down and has since returned to work: section 526(3) does not use the simple past tense. A framework that is concerned with the Commission’s resolution of disputes about present stand downs rather than ones that have concluded would make sense, because the Commission’s role is not to adjudicate the rights and wrongs of the past.

[47] Because the stand downs have now concluded, I doubt very much that there is a dispute about the operation of Part 3-5 within the meaning of s 526(1). Nevertheless, although the doctrine of stare decisis does not apply in an administrative tribunal, in deference to Full Bench authority I will proceed on the basis that the present application does concern a dispute about the operation of Part 3-5, which may include disputes about past stand downs, and that the dispute in question is that the ASU contends, and the employers deny or refute, that the stand downs did not meet the requirements of s 524, that they were in any event unfair, and that the Commission can and should make orders of compensation for the affected employees. My determination of that dispute is as follows.

[48] In my assessment, the stand downs in the present case met the requirements of s 524(1). I accept the evidence of Mr Trifonidis that during the stand down periods, the twelve employees could not be usefully employed. In Re Carpenters and Joiners Award (1971) 17 FLR 330, Spicer CJ and Smithers J held that the expression ‘usefully employed’, appearing in a stand down provision in an award, ‘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’ (at [334]). The requirement that useful employment carry a net benefit to the employer’s business may be contrasted with broader concepts of ‘usefulness’ such as the utility of work for the maintenance of skills and production. Because useful work should carry a net benefit to the business, the employer’s perspective on what work is useful will be highly relevant. Further, the requirement of net benefit to the business suggests that work of some immediate or prima facie value will not necessarily be of ultimate benefit. For example, there may be no net benefit to the business of production (which might otherwise in isolation be considered ‘useful’) if there is simply no market for the products that are produced. A net benefit might not necessarily need to be an economic one, although the economic consequences of particular work for the employer are clearly relevant to whether an employee can be usefully employed (see Townsend v General Motors-Holdens Ltd (1983) 4 IR 358 at 370).

[49] The employees gave evidence that other employees in their areas were not stood down, that certain categories of work continued despite the stand downs, and that such work could have been shared between the workers who were deployed to undertake it and the employees who were stood down. For example, Ms Tedjakusmana said that to the best of her knowledge, the work she had been performing to migrate the ReadyRooms platform to the new platform continued while she was stood down. Ms Diaz said that she understood that the Melbourne support team was busy and struggling to manage its workload, and that she and her colleagues in Sydney could have shared this work.

[50] I accept that there was work to be performed during the periods that the employees were stood down, but that does not mean that there was useful work for these employees to perform. There is no rule that any available work must be shared between employees. If useful work has been assigned to one employee, a consequence may be that there is no useful work for another employee. That some employees might remain busy is not a reason to suppose that there is excess work that should be diverted to others. Some employees may be better qualified to undertake available duties than others. In my view this was the case, for example, with Mr Hartung and Mr Woodyard. There is nothing that suggests to me that, in cases where it was necessary for the companies to decide who among a number of employees was best suited for available work, the companies’ decision was ungenuine or unreasonable. I do not see any appropriate basis to reject the employers’ judgement on these matters.

[51] It is clear that the companies made efforts to provide the employees with useful work and succeeded in doing so to a certain extent in a number of cases. There was a disagreement between the company and certain employees, supported by the ASU, regarding certain changes that they proposed to make to the contracts for the call centre work, which the company did not accept. Mr Trifonidis’ evidence was that the companies were required to comply with government requirements that employees sign the contracts for these roles. Some of the alternative work that the companies arranged for employees was at lower pay. I do not consider that these circumstances are suggestive of any non-compliance with s 524.

[52] Depending on the circumstances, the continued use of contractors during a period when employees have been stood down could call into question an employer’s contention that those employees cannot be usefully employed, but I do not consider that to be the case in respect of the companies’ continued engagement of Tourism Technology. This was an existing specialist provider that undertook a small of amount of available enhancing and programming work. Where there is a stoppage of work it may be uneconomical, and of no net benefit to the business, to retain employees to perform small volumes of ad hoc duties. The fact that a contractor absorbed a small amount of work that was previously undertaken by employees does not mean that that work could usefully have been undertaken by those employees.

[53] The ASU contended that the companies had overemphasised the distinction between domestic and international work and that with minimal training employees who usually work on international matters could have been deployed on domestic work. But the question of how to allocate available work to suitably qualified or trainable employees is a question that requires an operational judgement to be made by the employer, and provided it is genuine, I would not consider it appropriate simply to substitute the Commission’s own judgement.

[54] The ASU contended that the companies bore the onus of proving that they had met the requirements of s 524. Certainly in an application made in a court for wages due under a contract of employment or an industrial instrument, the employer would need to establish that the statutory justification for not paying those wages in s 524(3) was engaged. In an application made under s 526 of the Act however, the Commission’s task is to ‘deal with the dispute’. This requires the Commission to form a view about whether it considers that the stand down meets the requirements of s 524. Where the Commission has decided to arbitrate a dispute, it must make factual findings as to whether the circumstances are present or not, based on the evidence and submissions presented to the Commission.

[55] In the present matter, I find that there was no useful work for employees to perform. I also find that the absence of useful work for the employees to perform was a circumstance that arose because of stoppages of work affecting various parts of the companies’ business, and that the companies could not reasonably be held responsible for the stoppages, which were caused by the effects of the COVID-19 pandemic and the measures taken by government in response to it, which had a profound impact on the travel industry generally and on the companies in particular. In my view, it is not accurate to describe the circumstances in which the companies found themselves as a mere downturn. It was a situation of crisis occasioned by an unprecedented and overwhelming external event.

[56] I do not propose to record my full analysis of the evidence, which was voluminous, covering stand down periods spanning some eighteen months and affecting twelve employees. It is unnecessary to do so, because even if I had concluded that the employees could have been usefully employed, and that the stand downs did not meet the requirements of s 524, I would not have made orders for compensation. I have concluded that the Commission has no jurisdiction to make the primary compensation orders sought by the union in the present case, because such orders would require the purported exercise of judicial power. Further, I consider that, even if the orders could validly be made by the exercise of arbitral power, it would not be appropriate to do so, for discretionary reasons. I also consider that the alternative contention of the ASU, that the Commission has a residual power to consider the fairness of a stand down that meets the requirements of s 524, must be rejected, and that the alternative orders sought for compensation proportionate to work that might reasonably have been allocated to employees are not available and would not be made anyway in this case.

[57] In Carter, the Full Bench concluded that an order to compensate employees who had been stood down otherwise than in accordance with s 524 would be available under s 526 as a matter of power, if it were made taking into account all of the circumstances of the employer and employee and fairness as between the parties, and that such an order would not entail the exercise of judicial power (at [31]). At the same time, the Full Bench was very clear that 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’. This would be a purported exercise of the judicial power of the Commonwealth, similar to what occurred in Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd [1987] HCA 29 (Re Cram). In that case, an administrative tribunal concluded that a stand down of employees had been ‘wrong’ and that employees were entitled to payment of their wages on the days in question. A majority of the High Court (Mason CJ, Brennan, Deane, Dawson and Toohey JJ) held that the tribunal had exceeded its power by attempting to enforce employees’ existing legal rights.

[58] The creation of a genuine new right to compensation that is referrable to the Commission’s assessment of fairness would not entail the exercise of judicial power. I agree with the observation of the Full Bench in Carter at [20] that, in some case, there can be a fine line between the purported exercise of judicial power and the proper exercise of arbitral power. Nevertheless, it is a line that exists as a matter of objective reality. In my view, the ASU’s claim for compensation for economic loss is on the wrong side of that line.

[59] The union’s application and written submissions asked the Commission to order the companies to pay compensation that was ‘proportionate’ to employees’ economic loss arising from the stand downs, and in oral submissions, the ASU confirmed that it sought orders for payment in respect of economic loss suffered by its twelve members because of the companies’ unlawful stand downs. It is necessary briefly to address what the ASU meant by its reference to proportionality. The union’s primary argument was that employees were not stood down in accordance with s 524. In respect of this contention, the ASU’s claim for ‘proportionate’ compensation was clearly one for the actual amount of wages that employees did not receive because of the stand downs. The union led evidence from the employees about the wages that they would have received had the stand downs not been effectuated; employees spoke in concrete terms about their monetary losses in weekly or fortnightly pay, or their gross lost income over the period or periods of the stand downs, and the union acknowledged that JobKeeper and various other payments should be deducted from the amounts that should be ordered in compensation. The ASU’s alternative argument was that, even if the stand downs complied with s 524, they were unfair, and the Commission retained a discretion to order compensation for employees that was ‘proportionate’ to the amount of work they would have performed if work had been fairly distributed among employees. By this the ASU meant that, if it would have been fair to allocate an employee, say, one day’s work per week, the Commission should order that the employee receive compensation in that amount over the relevant period.

[60] The ASU submitted, in reliance on Carter, that because the primary orders it sought entailed the creation of new rights for the twelve employees by reference to what had occurred in the past and taking into account all of the relevant circumstances including fairness as between the parties, an order for compensation would be a valid exercise of arbitral power under s 526. However, the principal circumstance upon which the ASU relied in support of its claim for a new right to compensation was the alleged fact that the requirements of s 524 had not been met. The orders for compensation sought by the union would reflect the wages to which the employees were said to be entitled as a matter of law, because the employer’s right not to pay those wages under s 524(3) had not been engaged. In my opinion, the ASU’s application for orders that employees be paid compensation for actual economic loss during the stand downs is a claim for wages due. The ASU also referred to other considerations that it said bore out unfairness in the manner in which the companies had treated the employees, but this does not alter the character of the remedy that the union asks the Commission to grant.

[61] A claim for payment of wages due to an employee is a claim for the enforcement of existing legal rights. To grant such a claim requires the exercise of judicial power, which, at the federal level, is vested exclusively in Chapter III courts (see s 71 of the Constitution, and Re Cram, above, at 148). In Re Ranger Uranium Mines Pty Ltd; Ex Parte Federated Miscellaneous Workers’ Union of Australia (1987) 163 CLR 656, the High Court stated, at 665, that a function may be considered judicial or administrative according to the manner in which it is exercised (hence the occasional ‘fine line’ referred to in Carter), and that a determination of matters in issue would be a judicial function ‘if its object is the ascertainment of legal rights and obligations’, but that ‘if its object is to ascertain what rights and obligations should exist’, it is an arbitral power (at 666). In the present case, the ASU asks the Commission to grant employees their unpaid wages through the artificial device of a right to compensation of the same amount. The object of such an order would be to quantify and order payment of employees’ existing right to wages.

[62] However, even if I had concluded that the primary compensation orders sought by the union were to be regarded as within the province of the Commission’s arbitral powers, I would not have exercised those powers, for the following discretionary reasons.

[63] First, in my opinion, it would not be appropriate to make an arbitral award that wholly or partly mirrored an existing entitlement to wages, because it would be unjust to create a second entitlement to remuneration in respect of the same fundamental subject matter, namely unpaid wages. It would be contrary to equity and good conscience to do so (s 578(b)). An employee in respect of whom an order for compensation were made under s 526 would retain the right to sue under the contract of employment or the relevant award or enterprise agreement for wages withheld during the stand down. A member who ordered compensation in respect of such wages in whole or in part would commit discretionary error by failing to have regard to this relevant consideration. It is true that a court could have regard to any order made by the Commission under s 526 in the course of determining an appropriate remedy for an employee’s claim for lost wages (see s 545), but it would not be required to do so, and ultimately the Commission could not know how the court would approach this matter. There would also be the possibility that a court would order penalties to be paid to employees in respect of contraventions of a civil remedy provision. And of course, a court would not be bound by the Commission’s view that a stand down had not met the requirements of s 524 and might conclude that no wages were payable. Had I concluded that the stand downs did not meet the requirements of s 524, and that the orders sought by the ASU did not ask the Commission to purport to exercise the judicial power of the Commonwealth, I would have considered it inappropriate to award compensation in the nature of economic loss for periods in respect of which employees should have been paid wages, because employees could later bring a claim in a court for payment of those same amounts.

[64] Secondly, and independently of the first reason, I agree with the companies that a substantial consideration weighing against the exercise of any discretion to award compensation in the present matter is the fact that the ASU’s application under s 526 was not made until 1 October 2021, some seventeen months after the first stand downs commenced. I appreciate that the initial stand downs were not for lengthy periods, and that they were extended on numerous occasions, in circumstances that involved the return to work of some of the employees for certain periods, and uncertainty about how long the pandemic, the public health restrictions, and the associated stoppages of work would last. Of course, these were the same uncertainties that led the companies to maintain or reactivate the stand downs in respect of the various employees. Nevertheless, had an application under s 526 been made soon after the first stand down commenced in March 2020, the Commission could have sought to resolve a dispute over the application of Part 3-5 at a much earlier stage, and, had the ASU’s arguments prevailed, the Commission could have ordered the return to work of relevant employees, thereby avoiding or reducing the alleged losses and any associated need to order compensation.

[65] Thirdly, and relatedly, by delaying its application under s 526, the ASU deprived the companies of the possibility (assuming the union’s contention as to the stand downs’ non-compliance with s 524 had been accepted) of receiving labour for any payments required to be made to employees. An earlier application under s 526, if successful, could potentially have resulted in an order for employees to undertake useful work, for which they would have been paid. Instead, an application brought seventeen months after the stand downs commenced and determined after the stand downs had ended could only hope to achieve payment for employees, but not work for the benefit of the employer.

[66] The ASU’s alternative contention was that, even if the Commission concluded that the stand downs had met the requirements of s 524, it retained a discretion to determine whether the stand downs were fairly implemented, because in dealing with a dispute about the operation of Part 3-5, the paramount consideration, prescribed by s 526(4), is fairness as between the parties. I reject this contention. In dealing with a dispute about the operation of Part 3-5, the Commission is required to make an assessment as to whether it is satisfied that the requirements in s 524 have been met. If the Commission concludes that the requirements of s 524 have been met, it follows that, for the Commission’s purposes under s 526, the employer has lawfully implemented the stand down. This conclusion would determine the dispute. There is no residual role for the Commission to consider the fairness of a stand down once the Commission is satisfied that the stand down has met the requirements of s 524. It is not a requirement of s 524 that the stand down be implemented in a manner which in all the circumstances the Commission considers to be fair. Rather, s 526(4) states that ‘in dealing with the dispute’, the Commission must take into account fairness between the parties concerned. This requirement would apply to the manner in which the Commission deals with a dispute. For example, I considered it fair to determine the current dispute by arbitration, rather than by expressing an opinion. The requirement is also relevant to the Commission’s deliberations on the resolution of the dispute. For example, if the Commission concluded that a stand down did not meet the requirements of s 524 and ordered a return to work, fairness between the parties might affect the question of when the work should resume, or which employees should return to work first. Section 526(4) does not however constitute an additional element of a valid stand down. I would note that the ASU’s alternative argument finds no support in the decision of the Full Bench in Carter (see in particular [31]).

[67] The ASU’s alternative argument essentially contends that despite s 524 the Commission should broadly construe the power afforded to it under s 526 to ‘deal with a dispute’ as entailing an overarching mandate to ensure that all stand downs are substantively fair, and that the Commission should adopt such an approach because this interpretation is a fair and desirable one. But whatever its policy merit, there is no textual basis for the argument. To accept it would be to attempt to fashion a rationale in order to procure a legal outcome and thereby to commit the heresy of activism.

[68] In my opinion, the ASU’s alternative contention usefully prompts one to reflect upon the framework that the Parliament could have enacted but did not enact. Part 3-5 could have reposed in the Commission a broad discretion to determine whether a stand down was unfair having regard to the matters in s 524 and other considerations referrable to fairness, and if the stand down was unfair, to issue remedial orders including compensation. Such a provision could have addressed the significance of any compensation ordered by the Commission for future proceedings brought by employees to recover unpaid wages in a court, so as to avoid confusion, overlap and unfairness. Instead, s 526 simply authorises the Commission to deal with a dispute about the operation of Part 3-5, a Part which authorises employers to stand down employees and not to pay them in very specific circumstances.

[69] The ASU’s alternative submission in respect of compensation was that, if the Commission concluded that the employees had been lawfully but unfairly stood down, it should order compensation to be paid to employees in amounts proportionate to the work that they would have done had the work been fairly allocated between all employees. I have rejected the ASU’s contention that the Commission has a residual discretion to consider the fairness of stand downs that meet the requirements of s 524. But in any event, no compensation could be ordered in such cases, because s 524(3) plainly states that if an employer stands down an employee during a period under s 524(1), ‘the employer is not required to make payments to the employee for that period’. I have considered whether the ASU’s alternative submission on compensation could be applied to the ASU’s primary position on the merits of the application; that is, whether, if employees had been stood down otherwise than in compliance with s 524, they could have been awarded some other form of compensation by reference to dimensions of unfairness that the ASU contended were present, such as the absence of consultation about the stand downs or their extensions, or the failure to distribute work fairly or evenly. According to the decision of the Full Bench in Carter, such orders would be available as a matter of power. However, even if I had concluded that the stand downs had not met the requirements of s 524, I would not have used any such power in this case. The discretionary matters referred to by the ASU would in my view have been outweighed by the discretionary reasons I have referred to earlier that tell against the making of an award of compensation in this case. As to the first of those three reasons, an order would still have the effect of partly duplicating the amounts that might be recovered by an employee in a claim for wages in an eligible court.

[70] I am mindful that the stand downs lasted a long time, and that the twelve employees endured very difficult circumstances. However, the employees kept their jobs. They were not made redundant, as could well have occurred had a stand down facility not been available. This was not a case where employees contended that their positions were in fact redundant and that the employers were unreasonably refusing to declare the redundancies. As to such cases, I would note that in the context of s 524, a stoppage by its nature is one that is reasonably believed to be temporary. This is consistent with the evident purposes that are served by a stand down, which are to provide financial relief to employers in particular circumstances where they have no work that employees can usefully perform through no fault of their own, and to protect employees from redundancy (CEPU v Qantas Airways Limited 295 IR 225 at 229). There is a logical distinction in this context between a ‘stoppage of work’ and a permanent cessation of work. Beyond a certain point, it may be open to the Commission to conclude that a stoppage has become a cessation of work. If there is no longer a ‘stoppage’, but instead cessation, s 524 would no longer authorise the employer to withhold payments. However, as illustrated by the present case, a stoppage may endure for a protracted period, and yet serve to preserve jobs that might otherwise have been lost.

[71] The application is dismissed.

DEPUTY PRESIDENT

Appearances:

S. Fary for the ASU

J Tracey of counsel for the respondents

Hearing details:

2021

Melbourne

2 December

Printed by authority of the Commonwealth Government Printer

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