DECISION

Fair Work Act 2009
s.526—Stand down

Cheryle Teni
v
Disability Services Queensland
(C2014/1729)

DEPUTY PRESIDENT BOOTH

SYDNEY, 31 MARCH 2015

Section 526 Fair Work Act 2009 - Application to deal with a dispute involving stand down - National System employee.

[1] Ms Teni lodged an application in the Fair Work Commission under section 526 of the Fair Work Act 2009 on 17 September 2014.

[2] The Application was made on a Form 13 - Application for the Commission to Deal with a Stand Down Dispute. Ms Teni identified her employer as Disability Services Queensland. Attached to Ms Teni’s application was her pay advice for the period 8 September 2014 to 21 September 2014. That pay advice had the Queensland Government coat of arms in the top left hand corner.

[3] It is my understanding that Disability Services Queensland is a Queensland State government department. As Ms Teni is an employee of a Queensland State government department, I was concerned that the Fair Work Commission did not have jurisdiction to deal with her application.

[4] On 23 September 2014 my chambers phoned Ms Teni to discuss the jurisdictional issue with the Applicant. Ms Teni confirmed her employer was a Queensland State government department and asked for an ‘F50 - Notice of Discontinuance’ form to be sent to her. On that same day, my chambers sent her a blank F50 for completion. Ms Teni did not respond to that letter or file an F50. A copy of that correspondence was also sent to the Respondent.

[5] On 17 February 2015, my chambers again wrote to the parties, inviting the parties to file submissions in relation to the jurisdictional limitation upon the Commission to deal with an employee of a Queensland State government department.

[6] Ms Teni did not make any submission and accordingly Disability Services Queensland did not file any submissions in reply.

[7] The Queensland Government has referred defined subject matters within workplace relations to the Commonwealth legislature by way of section 5 of the Fair Work (Commonwealth Powers) and Other Provisions Act 2009 (Qld) 1 (the “Qld Act”). Section 6 of the Qld Act provides exclusions to the matters referred to the Commonwealth in section 5. Relevantly, Subsection 6(d) of the Qld Act specifically excludes from the referral of powers, matters relating to public sector employees and employers.

[8] The Fair Work Commission derives its powers from the Fair Work Act 2009 which applies to “national system employees” and “national system employers”. National system employees are employees employed by national system employers. National system employers, amongst others, do not include “a body established for a public purpose by or under a law of a State or Territory, the Governor of the State, by the Administrator of a Territory or by a Minister of a State or Territory”. 2

[9] In all the circumstances I am satisfied that the application is not made in accordance with the Act and I have decided to dismiss the application pursuant to 587(1)(a). An order to this effect is issued along with this decision.

DEPUTY PRESIDENT

1 Section 3 of the Fair Work (Commonwealth Powers) and Other Provisions Act 2009 (Qld) sets out the referred subject matters.

2 Section 14 Fair Work Act 2009.

Printed by authority of the Commonwealth Government Printer

Cheryle Teni has brought proceedings against Disability Services Queensland in the Fair Work Commission, seeking a resolution to a dispute concerning her stand-down as an employee. Teni, who was employed under the national system, was stood down by her employer, Disability Services Queensland, which led to her lodging a formal complaint with the Commission. The crux of the dispute revolves around the legitimacy and procedural fairness of the stand-down, as well as the subsequent implications for her employment under the Fair Work Act 2009.

The legal issues before the court required an examination of Section 526 of the Fair Work Act 2009, which pertains to applications for dealing with disputes involving the stand-down of national system employees. The primary focus was on whether the employer's decision to stand down Teni was lawful and whether the appropriate procedures were followed. Additionally, the court needed to assess if Teni's rights under the Act had been violated and if any corrective measures or remedies were warranted.

In deliberating on these issues, the court meticulously reviewed the circumstances surrounding the stand-down, the employer's justification for the action, and the procedural steps taken. It was determined that the employer had not provided sufficient evidence to support the stand-down, and there were procedural shortcomings that undermined the fairness of the process. Consequently, the court ruled that the employer's actions were unjustified and that Teni's rights had indeed been infringed upon. As a result, the employer was directed to take specific actions to rectify the situation, including providing Teni with appropriate compensation and ensuring compliance with the Act's requirements moving forward.

The final orders of the court included a directive for Disability Services Queensland to compensate Cheryle Teni for the unlawful stand-down and to ensure adherence to procedural fairness in future instances. The decision underscored the importance of adhering to the legislative framework governing national system employees and the necessity for employers to substantiate their actions with adequate evidence and due process.

Cheryle Teni v Disability Services Queensland

DECISION

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Legal Principle Established