Darius Yoda Dighton v SRG Global Integrated Services Pty Ltd
[2022] FWC 454
| [2022] FWC 454 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.526—Stand down
Darius Yoda Dighton
v
SRG Global Integrated Services Pty Ltd
(C2022/867)
| COMMISSIONER WILLIAMS | PERTH, 2 MARCH 2022 |
Application to deal with a dispute involving stand down.
On 2 February 2022 Mr Darius Yoda Dighton (Mr Dighton or the Applicant) filed an application (the Application) under section 526 of the Fair Work Act 2009 (the Act). The Respondent is SRG Global Integrated Services Pty Ltd (SRG or the Respondent). Section 526 of the Act allows the Commission to deal with disputes about stand downs that are provided for under section 524 of the Act.
The Application was the subject of a telephone conference on 1 March 2022.
Background
The following is the relevant factual matrix based on the information provided by the parties in writing and at the conference.
Mr Dighton is a casual employee of the Respondent.
He is a hoist worker and in this role is required to deliver, pick-up, install and dismantle hoist equipment on building and construction sites in the Perth metropolitan area.
In December 2021, the Western Australian Government issued the Building and Construction Industry Worker (Restrictions on Access) Directions No. 3 (the Directions).
The Directions were issued by the Acting Chief Health Officer, authorised as an emergency officer under section 174(2) of the Public Health Act 2016 (WA) to prevent, control or abate the serious public health risk presented by COVID-19.
The preamble of the Directions explains that their purpose is to put in place measures, for the purpose of limiting the spread of COVID-19 in Western Australia, that address the risks posed by COVID-19 to the building and construction workforce due to the risk of COVID-19 outbreaks and transmission between workers.
In summary the Directions required that a person who is a building and construction worker must not enter, or remain at, a building and construction site if the building and construction worker has not been partially vaccinated against COVID-19 from 1 January 2022, or fully vaccinated from 1 February 2022 unless the building and construction worker is an exempt person.
The Directions state that a building and construction worker must provide evidence of their vaccination status for inspection, if required to do so by their employer or a person in charge of the building construction site.
The Directions also require that an employer of a building and construction worker must take all reasonable and lawful steps to collect and maintain a record of the vaccination status of each building and construction worker and only permit those workers to work on a building and construction site who are vaccinated or are exempt persons in accordance with the Directions.
SRG communicated the requirements of the Directions to affected employees, including Mr Dighton via prestart meetings, where employees were asked to provide their proof of vaccine prior to returning from Christmas break on 4 January 2022. Mr Dighton also had one on one conversations with the Respondent’s manager about the requirement to comply with the Directions.
Mr Dighton has had the opportunity to provide evidence of his vaccination status or that he was an exempt person within the meaning of the Directions but has not done so within the requirements of the Directions.
Consequently, the Respondent has not been able to offer work to Mr Dighton that involved him attending building and construction sites.
Section 524 of the Act which is set out below explains what a standdown is within the meaning of the Act.
“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.”
Conclusion
Mr Dighton is currently unable to perform the inherent requirements of his role because he does not satisfy the requirements of the Directions which are a precondition laid down by the Western Australia Government for employees working on building and construction sites.
The Respondent repeated at conference what it has previously advised Mr Dighton, that if he provides the Respondent with evidence he is fully vaccinated or is an exempt person within the meaning of the Directions they will allocate him to available work.
Mr Dighton has not been stood down within the meaning of section 524 of the Act. Consequently, this application will be dismissed and an order [PR738906] to that effect issued.
Printed by authority of the Commonwealth Government Printer
<PR738905>
0
0
0