DECISION

Fair Work Act 2009
s.526—Stand down

Dylan Collis
v
SPI Plumbing (Australia) Pty Ltd
(C2020/5858)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 10 AUGUST 2020

Alleged stand down dispute – whether employee stood down – relief sought judicial power – application dismissed.

[1] On Tuesday 28 July 2020, Mr Dylan Collis made application to the Commission pursuant to s.526 of the Fair Work Act 2009 (the Act) in relation to an alleged stand down (the Application). Mr Collis named SPI Plumbing Pty Ltd as the Respondent to the Application but during its conduct, I was advised by the Respondent’s Director, Mr David Ristevski, that the correct name of the Respondent is SPI Plumbing (Australia) Pty Ltd. I therefore varied the Application accordingly, exercising the Commission’s discretionary power under s.586(a) of the Act.

[2] Mr Collis contends he has been stood down without pay since Wednesday 8 July 2020 and that the Respondent has not complied with s.524 of the Act, on the basis that the circumstances in that section have not applied. Mr Collis says he has been available to work in his role as a plumber throughout and seeks payment at his full rate of pay for the period during which he has been stood down.

[3] I conducted a conference with the parties at midday on Thursday 30 July 2020 and, having been unable to assist the parties in resolving the matters in dispute through conciliation, made directions for the filing and service of materials and conducted a hearing on Thursday 6 August 2020. At the hearing evidence was given by:

a) Mr Collis;

b) Mr Ristevski;

c) Ms Sue Bell; and

d) Mr Daniel Hogarty.

Background

[4] The Respondent is a plumbing company. It employs a crew of 8 plumbers and 3 apprentices, of which Mr Collis is one of the former. It also employs administration staff, of which Ms Bell is one. The Respondent’s work is 99% commercial construction. It performs next to no residential construction work. As outlined above, Mr Ristevski is the Director of the Respondent. Mr Hogarty manages day to day plumbing operations. Together, Mr Ristevski and Mr Hogarty source new work for the Respondent.

[5] The Respondent has not yet become eligible for JobKeeper payments although it has suffered a decline in the volume of its work. In early July 2020, Mr Ristevski implemented some operational changes to respond to the reduced volume of work, his objective being to keep the entire plumbing crew employed until things picked up again. The solution arrived at was for all employees to work reduced hours. For the plumbing crew, this meant working every second week only, on a rotating roster. With the exception of Mr Collis, all employees of the Respondent have voluntarily agreed to work less hours since 8 July 2020, on a reduced rate of pay.

[6] On Monday 13 July 2020, Mr Collis received a letter dated 8 July 2020 from Mr Ristevski, which stated:

“Dear Dylan,

We…

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 4196
Decision Date: 10 AUGUST 2020

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Dylan Collis sued SPI Plumbing (Australia) Pty Ltd over a dispute involving his alleged stand down. Collis claimed that he was unlawfully stood down by his employer. The court was required to determine whether the employee was indeed stood down and, if so, whether the court had the jurisdiction to grant the relief sought by Collis. The court also had to consider if the application for relief amounted to an exercise of judicial power in relation to industrial matters, which is constitutionally prohibited.

The court considered whether the employee was stood down, which was a preliminary issue before it could address the merits of the case. The court also needed to assess if it had the authority to grant the relief sought by Collis, given the potential overlap with industrial matters. The court examined the nature of the application and whether it involved the exercise of judicial power over industrial issues. In this context, the court was required to balance the constitutional restrictions on judicial power with the need to provide a remedy for the employee.

The court found that the application did not involve the exercise of judicial power over industrial matters, and therefore, the application was not constitutionally invalid. However, the court noted that the relief sought by the employee went beyond what the court could provide. The court held that it did not have the jurisdiction to grant the specific relief sought by Collis, which included reinstatement and compensation. The court dismissed the application on the basis that the requested relief was beyond its jurisdictional scope.

No final orders were made as the application was dismissed. The court did not grant any relief to the applicant, and the matter remained unresolved in terms of the merits of the stand down dispute.

Orders