Collette Buttress v Preston James 1 Pty Ltd
[2020] FWC 5927
•16 NOVEMBER 2020
| [2020] FWC 5927 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.526—Stand down
Collette Buttress
v
Preston James 1 Pty Ltd
(C2020/6729)
DEPUTY PRESIDENT BINET | PERTH, 16 NOVEMBER 2020 |
Application to deal with a dispute involving stand down.
[1] On 2 September 2020, Ms Collette Buttress (Ms Buttress) filed an application (Application) with the Fair Work Commission (FWC) pursuant to section 526 of the Fair Work Act 2009 (Cth) (FW Act) to deal with a stand down dispute with Preston James 1 Pty Ltd (Preston James).
[2] On 7 September 2020, Preston James were invited to provide a response to the Application. On 17 September 2020, Mr Mathew Wilson Group Manager of Preston James (Mr Wilson) provided a brief response to the Application (Response).
[3] On 9 October 2020, the parties attended a conciliation conference before me. The issues in dispute could not be resolved. The parties were advised that the Application would be listed for hearing and directions would be issued requiring the filing of materials in advance of the hearing. Mr Niall Conlan (Mr Conlan) who appeared on behalf of Preston James at the Conference indicated that Preston James would be placed in liquidation in the event that Ms Buttress pressed her Application.
[4] Directions for the filing of materials in advance of the hearing were issued to the parties on 30 September 2020 (Directions). The Directions required Preston James to file materials in response to the Application by 4pm, Thursday 22 October 2020. The Directions provided at [14] that compliance with the Directions was mandatory and a failure comply with the Directions may disadvantage the party concerned.
[5] Preston James failed to file its materials as directed. On 26 October 2020, my Chambers notified Preston James that it had been granted an extension of time until 4pm AWST of that same day to file its materials. Preston James were notified that if it failed to file its materials by this date that the Application would be determined based on the materials currently before the FWC.
[6] On 30 October 2020, the parties were advised that unless the parties notified Chambers that they wished to be heard orally in relation to the Application by 3 November 2020 that the Application would be determined on the papers.
[7] Preston James did not contact Chambers by this date or since. Ms Buttress confirmed on 30 October 2020 that she wished for the Application to be determined ‘on the papers’.
Background
[8] Preston James is a recruitment business based in Australia which provides recruitment staff to recruitment companies. Preston James are paid a fee for this service upon the commencement of their candidate’s employment with the client. Typically, Preston James provide a 3-6 month guarantee under which they are obliged to replace the candidate without a fee being charged, should the candidate not remain with the client for the duration of the guarantee period.
[9] Mr Wilson who is based in Queensland and Mr Conlan who is based in New South Wales are directors of Preston James.
[10] Ms Buttress commenced employment with Preston James Pty Ltd in the role of Principle Consultant on 6 February 2018.
[11] In March 2019, the Conlon Family Group acquired Preston James Pty Ltd and then renamed the business Preston James 1 Pty Ltd.
[12] On or around 19 April 2019, Ms Buttress was offered and accepted a contract with Preston James 1 Pty Ltd. This contract provided that she would be appointed to the role of State Manager – WA and be paid an annual salary of at least $105,000 plus a monthly commission ranging from 30% for fees generated of more than $12,500, to 60% for fees over $100,000.
[13] The basic duties she was required to perform, for both entities included:
a. generating business leads via cold calling clients, promoting services (on a daily basis), who may look to recruit salespeople;
b. generating candidates who are actively or passively looking for a new role promoting services on a daily basis, to then either sell out to clients or to match to current roles already generated;
c. setting up interviews and follow up feedbacks; and
d. following the process through to offer and placement.
[14] Ms Buttress billed consistently for the two entities over, approximately, a 2.5-year period. For example, in the 6 months from November 2019 to March 2020 she generated circa $130,000 in revenue. This equated to twice her salary costs.
[15] No performance or conduct concerns were raised with her until 23 March 2020.
[16] On 23 March 2020 she received a phone call from Mr Wilson, she says with a view to engineering her dismissal/termination from the business on the grounds of gross misconduct. Mr Wilson alleged that she had contacted a candidate with a view to working with them separately to Preston James, in breach of her contractual responsibilities. She challenged Mr Wilson as to the validity of the accusations and asked him to provide evidence. Nothing was forthcoming.
[17] Through a series of phone calls on the same day, Mr Wilson subsequently rescinded his allegations. He informed her that she was considered a valued member of the business and that he wished to draw a line under the incident.
[18] On 27 March 2020, Ms Buttress received a call from Ms Katherine Murray (Ms Murray) who was engaged in Sydney by Preston James performing an equivalent role. Ms Murray (who had been employed with Preston James for approximately 3 months) informed Ms Buttress that Ms Murray had been exited from the business and had received a payout of $20,000. Ms Murray warned Ms Buttress that the Preston James might not have the money to pay Ms Buttresses wages as a consequence of this payment.
[19] Worried that she would go unpaid, Ms Buttress called Mr Wilson to inform him of her discussions with Ms Murray and to check that payment of her wages would be made as normal for the month of March. Mr Wilson confirmed to her that she would be paid as normal and on time.
[20] Later the same day, she received a call from Mr Wilson who explained that “things were not looking good in the market, but we were fine, and our jobs were safe”. Mr Wilson also added that the company position was further enhanced, now he had exited Ms Murray from the business.
[21] Ultimately, Ms Buttress did not receive her pay on 27 March 2020.
[22] The relationship between Ms Buttress and Mr Wilson subsequently began to deteriorate.
[23] On 30 March 2020, Ms Buttress received a phone call from Mr Wilson asking if she had changed her LinkedIn password. She confirmed that as Preston James had recently chosen to no longer pay for a subscription on her behalf that she had changed her password. Mr Wilson was not happy with her response and said, “fair enough, its like that is it?”. Mr Wilson then proposed three options to her. The three options were that:
a. she be stood down without pay;
b. she agree to a contract variation whereby she be paid commission only; or
c. she agree to a new contract of employment working only 2 days a week.
[24] She indicated that she was happy to help in any way to assist the company to deal with the impact of COVID but that she didn’t want a permanent change made to her contractual arrangements. She requested that the options be provided to her in writing.
[25] Notwithstanding the offer of three options, ultimately only the stand down option was put to her in writing. On 30 March 2020, Ms Buttress received correspondence from Mr Wilson informing her that:
“Due to unforeseen circumstances relating to coronavirus and the impact that it is having on businesses Australian wide and globally, it is with great regret we have no alternative than to stand you down from your normal work activities with immediate effect.”
[26] The correspondence goes on to state that during the period in which she is stood down she will not be entitled to “any pay, or other entitlements.” None of the other options outlined in Mr Wilson’s call were offered to her.
[27] On 2 April 2020, Mr Wilson called Ms Buttress and told her that she could resume working. However, he stipulated that she would not be paid her salary or her normal commission. Rather she would be paid ½ of the fee received from the client once the candidates were out of their notice period. Ms Buttress says that she declined for the following reasons:
a. having been stood down due to a stoppage in work, how could there be “work” to do?
b. the arrangements were in breach of her contractual arrangements; and
c. the proposed arrangement would result in a time lag of 3-4 months before any funds would be released to her.
[28] Later the same day, Ms Buttress received a call from Mr Wilson during which he informed her that another option was available to her, which was to exit the business immediately by way of a payoff. Mr Wilson told her he would speak to Mr Conlon and see what he could do and asked her what figure she would want. Ms Buttress responded that if the intention of the business was to make her redundant, then she understood given the circumstances but that it wasn’t a case of what she would want, any redundancy needed to be as per her contractual entitlements. Mr Wilson responded “you won’t get three months out of us” but that he would speak to Mr Conlon anyway.
[29] Mr Wilson called Ms Buttress back on 2 April 2020, having had a conversation with Mr Conlon, and stated that:
“As a goodwill gesture and because Niall is feeling generous that the business would commence paying JobKeeper benefit to you on Friday 17th April.”
[30] Ms Buttress asked why JobKeeper was now on the table when it was not discussed prior to being stood down, and also questioned why they were not talking about redundancy given the earlier conversation. Mr Wilson ignored the JobKeeper question and explained that redundancy was now not an option as there had been an error when issuing her contract. The contract offered 3 months’ notice and the business would not pay that. It was stand down or JobKeeper. Mr Wilson also explained that if she agreed to JobKeeper that she would be required to sign a new permanent employment contract that included a reduced salary and commission structure. She declined to sign a new contract.
[31] On 2 April 2020, Mr Wilson sent Ms Buttress an email saying the sum of $1,337.62 “which is the government subsidy” would be deposited into her bank account as payment for the period 1-15 April 2020 with “further fortnightly payments thereafter.” Ultimately, nothing was paid to her.
[32] On 3 April 2020, Ms Buttress received an email from Mr Wilson attaching a new contract of employment. The contact contained inferior conditions, including a $60,000 reduction in her base salary, a shorter notice period and reduced commission. She replied to Mr Wilson indicating that she was willing to negotiate reduced hours of work and/or pay on a temporary basis, however she was not willing to sign the new contract given its significantly reduced entitlements.
[33] On 6 April 2020, Ms Buttress received a “without prejudice” email from Mr Conlon in which he stated that if she did not accept the new contract that:
“… the company is not in a position to continue your employment under the current contract as there is no work for you to do, and the company does not have the means to pay you…”.
[34] On 8 April 2020, Mr Conlon sent an email to Ms Buttress indicating that the company did not intend to apply for JobKeeper and that she would remain on stand down.
[35] On 14 April 2020, Ms Buttress sent an email to Mr Conlon inter alia requesting a formal bi-weekly catch up to understand how and why a return to work might happen. She also pointed out that Mr Wilson had indicated on 2 April 2020 that she would receive the JobKeeper subsidy.
[36] Mr Conlon replied, on 15 April 2020, indicating that the company did not currently intend to apply for JobKeeper.
[37] On 11 May 2020, Ms Buttress contacted Mr Wilson to discuss the upturn in the job market in Perth. She informed him that clients had contacted her and that she was aware of an upturn in job activity. She requested that she be “stood back up” so that she could develop a ‘pipeline’ of candidates ready to place and contact clients who were now advertising jobs. He declined to do so.
[38] On the advice of the Employment Law Centre, on 13 May 2020, Ms Buttress sent an email to Mr Wilson proposing terms for her departure and informing him that if the parties could not reach a resolution, she would seek to enforce her legal rights. On 14 May 2020, Mr Conlon replied indicating that the company did not intend to pay her backpay.
[39] Ms Buttress replied later the same day to confirm she would commence an action in the Industrial Magistrates Court. She also informed Mr Conlan that, as of 18 May 2020, the Western Australian government were encouraging Western Australians to return to work and that the vast majority of her key clients, candidates and competitors were doing so, and that keeping her on stand down would result in lost business opportunities.
[40] At the request of Ms Buttress, she and Mr Wilson entered into a period of bi-monthly phone calls to discuss the market and what level of activity would trigger her return to work. Ms Buttress explained to Mr Wilson that unless she was permitted to return to work and build up sales momentum, then realistically a return to work would not happen because no revenue would be generated to fund her salary.
[41] During this period, at the company’s request, she forwarded business leads to Mr Wilson who then set up interviews and forwarded candidates to clients, work Ms Buttress would normally have performed herself.
[42] On 29 June 2020, Mr Wilson proposed that Ms Buttress return to work from 6 July 2020, initially 2 days per week before eventually returning to full time hours once the market had improved.
[43] Ms Buttress was certified unfit for work for an initial two-week period, then a further two-week period.
[44] On 4 August 2020, Mr Wilson informed Ms Buttress that she had been stood down again with immediate effect:’
“… due to market conditions deteriorating again, driven by a new lockdown in Victoria, which we have already seen has had a roll on effect nationally.”
[45] On 19 August 2020, Mr Wilson informed Ms Buttress that the business would be restructured and that the role she currently occupied was at risk of redundancy. She was offered the chance to relocate to the Eastern States to continue her employment.
[46] On 24 August 2020, Mr Wilson informed Ms Buttress that the business was to be wound up and that she would be retrenched. He informed her that she would remain stood down until her retrenchment took effect and not be paid in lieu of notice, in case she was called upon to perform some work before her retrenchment took effect.
[47] On 26 August 2020, the Industrial Magistrates Court dismissed her application to be paid her unpaid wages for want of jurisdiction. She says she was informed by the Industrial Magistrates Court that it was necessary for the FWC to determine whether she had been stood down for the purposes of section 524 of the FW Act before it could make orders for the payment of her unpaid wages.
[48] On 28 August 2020, Mr Wilson provided Ms Buttress with details of her redundancy package.
[49] On 2 September 2020, Ms Buttress filed the Application. Ms Buttress submits that she was not lawfully stood down during the period from 30 March 2020 until 6 July 2020 (First Stand Down Period) and cannot be lawfully stood down between 4 August 2020 and the impending termination of her employment on 24 November 2020 (Second Stand Down Period). She seeks an order to this effect so that she can commence proceedings in the Industrial Magistrates Court to recover her lost wages during the Stand Down Period.
Relevant Legislation
[50] Section 524 of the FW Act provides that:
“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
[51] There is no evidence before me that suggests either an enterprise agreement or contract of employment covering Ms Buttress’ employment contained any stand down arrangements.
[52] Section 526 of the FW Act sets out how the FWC may deal with a dispute about the operation of section 524 as follows:
“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.”
[53] Ms Buttress filed the Application on 2 September 2020. On 24 August 2020, she was informed that her position was redundant and that she would be retrenched at the completion of her notice period. Her contract provides for a notice period of three months and she was informed that she would not be paid in lieu of serving her notice period therefore her employment is scheduled to terminate on or around 24 November 2020. I am satisfied that, at the time Ms Buttress filed the Application, she had standing to make the Application in her capacity as an employee who has been stood down, or purportedly stood down, under sub section 524(1) of the FW Act.
[54] Essentially there are three requirements for a stand-down to be valid:
a. one or more of the three circumstances specified in sub section 524(1)(a) to (c) of the FW Act must exist (Circumstances Requirement);
b. it must be the case that the relevant employee “cannot usefully be employed” (No Useful Work Requirement); and
c. the fact that the employee “cannot usefully be employed” must arise “because of” the relevant circumstance (Causation Requirement).
[55] Ms Buttress submits that none of the requirements of sub section 524(1) of the FW Act were satisfied during either the First Stand Down Period or the Second Stand Down Period (collectively the Stand Down Periods). She asserts that there was no stoppage of work for the purposes of section 524(1)(a) of the FW Act during the Stand Down Periods. She also asserts that she could have been usefully employed during the Stand Down Periods.
Was there a stoppage of work for the purposes of sub section 524(1)(a) of the FW Act?
[56] What constitutes a stoppage of work for the purposes of sub section 524(1) of the FW Act was considered by Deputy President Anderson in La Plume v Thomas Foods International Pty Limited t/a Thomas Foods International1 where he said:
“For the aforementioned reasons, what constitutes a “stoppage of work” in section 524 should not be so broadly construed as to include a mere downturn in business activity nor be so narrowly applied as to require the entire cessation of business activity. The statutory phrase is a stoppage of work, not a stoppage of the business. For there to be a stoppage of work some defined business activity with respect to which work is performed needs to cease, but not the cessation of business activity entirely.” [Footnotes omitted]
[57] A mere reduction in available work can not constitute a stoppage of work. This would go against the ordinary definition of a ‘stoppage’ as required by the principles of statutory interpretation. Such an interpretation would result in a perverse outcome where section 524 of the FW Act could be applied so liberally as to deprive employees of their fundamental entitlement to be paid when they are ready, willing and able to work in accordance with their contract of employment.2
[58] Preston James filed only a brief response to the Application and did not file any submissions or any evidence in accordance with the Directions. In the Response, Mr Wilson says that when COVID-19 hit Australia that the firm’s clients ceased using its services. He says that in June 2020 there were signs the market was recovering so Ms Buttress was offered two days per week work. He says that, in July 2020, market conditions became markedly worse when the Melbourne outbreak occurred. He says that Ms Buttress was notified that her position would be redundant in August 2020, because the firm believed that the market conditions would remain poor in the longer term. In support of his assertions, Mr Wilson provided two invoices which he said were not ultimately paid by the relevant client and an extract from a LinkedIn post by a gentleman that Mr Wilson described as a veteran of the recruitment industry, about the recruitment industry generally.
[59] Ms Buttress submits that no stoppage of work occurred. She says that the business continued to function, and Mr Wilson undertook the work in Western Australia that Ms Buttress would normally have performed, including contacting clients and presenting candidates for roles. Preston James did not tender any evidence to the contrary.
[60] Ms Buttress says that if she had been permitted to perform her duties, she would have generated work and revenue for the business. To the extent that any stoppage of work did occur Ms Butress submits that it was Preston James’ act of refusing to permit her to perform her duties which resulted in the lack of work being performed, rather than COVID-19.
[61] Preston James first foreshadowed Ms Buttress being stood down on 30 March 2020, as an alternative to her agreeing to contractual variations to her renumeration or hours of work. The fact that the opportunity to work less, for less, existed is not consistent with the assertion that work had stopped.
[62] The letter of 30 March 2020, confirming her stand down, does not identify how the coronavirus was stopping Preston James performing work, rather it suggests a down turn in work.
“Due to unforeseen circumstances relating to coronavirus and the impact that it is having on businesses Australian wide and globally, it is with great regret we have not alternative than to stand you down from your normal work activities with immediate effect.”
[63] Ms Buttress indicated to Preston James that she was happy to help in any way to assist the company deal with the impact of COVID but that (quite reasonably) she didn’t want a permanent change made to her contractual arrangements. Preston James insisted that her current contract be replaced rather than temporarily varied. It is unclear how work could exist for her to perform, provided she agreed to permanent contractual changes, but such work did not exist if she was only prepared to make temporary adjustments.
[64] On the second occasion, she was stood down when Mr Wilson informed Ms Buttress that she had been stood down again with immediate effect:
“… due to market conditions deteriorating again, driven by a new lockdown in Vicotrian, which we have already seen has had a roll on effect nationally.”
[65] It is unclear how the lock down in Victoria impacted on the recovery of the Western Australian job market.
[66] There was no mandatory business closure in the recruitment sector in Western Australia during either period Ms Buttress was stood down.
[67] Ms Buttress’ duties appear to be of a nature which could readily be performed remotely.
[68] While describing a down turn in business, other than the Response and its attached invoices, Preston James did not file any evidence to suggest that a stoppage of work did in fact occur and or that the stoppage continued throughout the duration of the First Stand Down Period or Second Stand Down Period.
[69] The evidence that part time employment, on reduced conditions, was offered to Ms Buttress on 3 April 2020, part way through the First Stand Down Period would in fact suggest that work had not stopped during this period rather that work had become less profitable.
[70] Having stood her upon 6 July 2020, due to the improving Western Australian job market, it is unclear how the Victorian lockdown then stopped work in Western Australia.
[71] The evidence of client leads in Western Australia provided to Mr Wilson by Ms Buttress, and the evidence that he pursued these leads suggest that there was in fact work to do. Rather than COVID-19 stopping work, it appears the refusal to allow Ms Buttress to perform her duties inevitably created a situation whereby she was unable to create leads to generate work nor generate revenue to support her return to work.
[72] The stand down appears intended to force her to resign from the business to avoid the lengthy notice period contained in her contract of employment.
[73] Based on the evidence, I am not satisfied that there was a ‘stoppage of work’ for the purposes of the FW Act which might form the basis upon which Ms Buttress could have been stood down or remain stood down.
Was there no useful work for Ms Buttress to perform during the Stand Down Period?
[74] In RE Carpenters and Joiners Award 1967 [1971] CAR 479, the Full Court of the Federal Court stated:
“It cannot be said that an employee cannot be usefully employed on a particular day if there is a day’s work available for him which if performed on that day, will, having regard to the probable course of the employer’s business, contribute beneficially to the reasonable and efficient conduct thereof.”
[75] It is clear from the authorities that an employee may be usefully employed for the purposes of section 524 of the FW Act, although as a matter of convenience the employer would prefer the employee not to be at work.
[76] The uncontested evidence of Ms Buttress is that there was work to do but that Mr Wilson performed the work and she was denied the opportunity to perform the work. In the ever improving Western Australian economy, it would seem probable that the opportunities for Ms Buttress to perform useful work is in fact increasing.
[77] On the evidence before me, I am not satisfied that there was no useful work for Ms Buttress to perform during the period she was purportedly stood down or that there is no useful work for Ms Buttress to perform now. Consequently, I am also satisfied that the Causation Requirement could not have been met.
Fairness Considerations
[78] A stand down under section 524 of the FW Act is a statutory tool available to a business (if pre-conditions are met) in situations where an employer temporarily does not have work for an employee to perform, for reasons beyond the control of the employer, but wishes to preserve the employment of an employee. While on stand down, an employee must hold themselves ready, willing and able to return to work, yet they are not entitled to payment of wages.
[79] As a matter of fairness, before taking the drastic step of refusing to pay an employee’s wages, the employer should explore what alternative arrangements might be entered into. For example, exploring the options for agreed temporary reduction in hours and/or days of work or allowing employees to take leave at normal or reduced pay rates.
[80] Ms Buttress expressed a willingness on multiple occasions to negotiate temporary changes in her hours of work or other conditions of employment. Preston James refused to allow Ms Buttress to return to work, unless she agreed to permanent substantial reductions in her terms and conditions of employment. It is not reasonable that she be required to make permanent concessions in her employment conditions to address temporary market conditions.
[81] The evidence, such as the request for criteria for her return to work, requests for regular catchups and the provision of client leads, suggests that Ms Buttress proactively sought to facilitate her return to work.
[82] Having decided her position was redundant, rather than terminate her employment immediately, Preston James have continued to insist that she remain on stand down without pay or means of supporting herself and her child.
[83] I am not satisfied that, even if Ms Buttress’ stand down was in accordance with sub section 524(1)(c) of the FW Act, that in all of the circumstances of this Application that the purported stand down is fair as between the parties.
Conclusion
[84] In Schell v Ensign Australia Pty Ltd,3 Commissioner Johns observed:
“[2] … Each of the original applications sought an order that the applicants be paid an amount referable to the period from when they were stood down to when their employment was terminated. In essence the original orders sought had all the hallmarks of a claim for back payments in respect of the identified period. On the face of the original applications it seemed, more likely than not, that the applicants, by way of remedy, wanted the Commission to enforce a past right. That is to say they wanted the Commission to exercise judicial power rather than arbitral power. That would have been beyond the jurisdiction of the Commission.”
[85] Applying this analysis to the matter before me, it is not within my power to order James Preston to pay Ms Buttress her wages for the Stand Down Periods. Only a Court may make such orders.4
[86] However, to the extent that her current stand down is a matter in relation to which I have jurisdiction and that a direction that she be returned to work involves the exercise of an arbital power by creating new rights and obligations, I order that her stand down should cease immediately and she should be permitted to return to work for the hours and terms set out in her contract of employment.
[87] An order 5 to this effect will be issued with this decision.
DEPUTY PRESIDENT
On the papers
Printed by authority of the Commonwealth Government Printer
<PR724297>
1 [2020] FWC 3690
2 [2020] FWC 2721 at [12]
3 [2015] FWC 8825
4 Dylan Collis v SPI Plumbing (Australia) Pty Ltd[2020] FWC 4196 applying Construction, Forestry, Maritime, Mining and Energy Union v DP World Melbourne Ltd[2020] FWC 4147 at [46] and Bristow HelicoptersAustralia Pty Ltd v AFAP [2017] FWCFB 487 at [53] to [57]
5 PR724601.
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4
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