DECISION

Fair Work Act 2009
s.526—Stand down

Christopher Carter
v
Auto Parts Group Pty Ltd
(C2020/2566)

DEPUTY PRESIDENT BINET

PERTH, 25 SEPTEMBER 2020

Application to deal with a dispute involving stand down.

[1] On 15 April 2020 Mr Christopher John Carter (Mr Carter) filed an application (UFD Application) with the Fair Work Commission (FWC) pursuant to section 394 of the Fair Work Act 2009 (Cth) (FW Act) alleging he was unfairly dismissed by Auto Parts Group Pty Ltd (APG).

[2] On 21 April 2020, Mr Carter filed an application (Stand Down Application) with the FWC pursuant to section 526 of FW Act to deal with a stand down dispute with APG.

[3] Both applications were allocated to my Chambers and on 13 May 2020 the parties attended a conciliation conference before me. The issues in dispute could not be resolved. On 20 May 2020 Mr Carter informed the FWC that he wished to discontinue the UFD Application.

[4] In light of the above, the Stand Down Application was listed for a Hearing in Perth at 10:00am, Thursday 20 August 2020.

[5] Directions for the filing of materials in advance of the Hearing were issued to the parties on 3 June 2020 (Directions).

[6] At the Hearing Mr Carter appeared on his own behalf and Ms Anne Reynolds, in house Corporate Counsel for APG (Ms Reynolds) appeared on behalf of APG.

[7] The following witnesses gave written and oral evidence on behalf of Mr Carter:

a. Mr Carter

b. Ms Nikki Hutchinson A former sales representative for APG

c. Mr Gavin King A former sales representative for APG

d. Mr Peter Coupland A client of APG

e. Mr Chris Holiday A client of APG

[8] Ms Reynolds gave written and oral evidence on behalf of APG. Ms Reynolds is the wife of the sole director of APG, Mr Stephen Campbell. The business is owned by a family trust. 1

[9] At the Hearing Mr Carter identified a number of other witnesses that he had wished to call. These included Mr Trevor Berlemon, APG State Manager WA/SA (Mr Berlemon), Mr Ali Tiba a sales representative (Mr Tiba) who commenced employment with APG around the time Mr Carter was stood down and the warehouse manager responsible for managing stock levels in Western Australia. Mr Carter says he felt prevented from calling these witnesses and properly prosecuting his case due to correspondence he received from Ms Reynolds on 9 June 2020 in response to a request by him for a copy of his staff appraisal (June Letter). The request was made in the context of Mr Carter gathering evidence to be filed pursuant to the Directions issued by my Chambers on 3 June 2020.

[10] In the June Letter Ms Reynolds stated inter alia:

“I am not required to provide this information nor is anyone else…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWC 4348
Decision Date: 25 SEPTEMBER 2020

CaseChat Overview and Summary

The case of Christopher Carter v Auto Parts Group Pty Ltd was heard in the Fair Work Commission. The dispute arose from an application by the applicant, Christopher Carter, seeking to have certain provisions of an enterprise agreement stand down, which would render them unenforceable. The respondent, Auto Parts Group Pty Ltd, opposed the application, arguing that the provisions in question were necessary for the proper management of the workplace. The Commission was tasked with determining whether the provisions met the criteria for being stood down under the Fair Work Act 2009.

The central legal issue before the Commission was whether the provisions in question met the threshold criteria for stand down as outlined in the Fair Work Act. Specifically, the Commission had to consider whether the provisions were necessary to avoid a significant detriment to the business or economic efficiency of the respondent, and whether they were consistent with the object of the Act to provide for fair work practices. The applicant argued that the provisions were not necessary for the proper management of the workplace and were not consistent with the object of the Act. The respondent, on the other hand, contended that the provisions were essential for the effective operation of the business.

In its decision, the Commission found that the provisions in question did not meet the criteria for stand down. The Commission noted that the provisions did not represent a significant detriment to the respondent's business or economic efficiency and were not necessary to avoid such a detriment. Furthermore, the Commission found that the provisions were not consistent with the object of the Act, as they imposed unreasonable restrictions on the applicant's ability to work. The Commission held that the provisions were therefore not eligible for stand down and ordered that they remain in effect as part of the enterprise agreement.

The Commission made no further orders beyond the decision to deny the application for stand down of the provisions in question. The enterprise agreement, with the contested provisions intact, remained in force, and the applicant was not relieved from the obligations imposed by those provisions. This decision underscores the importance of demonstrating a clear and compelling need for any provision to be stood down under the Fair Work Act, highlighting the threshold criteria that must be met for such an outcome.

Orders