Ediz Nidai v Autonexus Pty Limited - [2022] FWC 841

[2022] FWC 841

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.526—Stand down

Ediz Nidai
v

Autonexus Pty Limited

(C2021/6568)

COMMISSIONER MATHESON

SYDNEY, 11 APRIL 2022

Application to deal with a dispute involving stand down.

Mr Ediz Nidai (Applicant) works for Autonexus Pty Ltd (Respondent) as a forklift driver in a warehouse and lives in a local government area (LGA) that was declared a LGA of concern during the COVID-19 pandemic.

In response to developments during the COVID-19 pandemic the NSW Government amended its public health orders such that from 6 September 2021, authorised workers who live in a LGA of concern must have received at least one dose of a COVID-19 vaccine in order to work outside the LGA of concern unless they had a medical contraindication preventing vaccination.

In particular, the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 came into force at 4:00pm on 5 September 2021 and was in force until 11 September 2021 and provided:

·that a resident in an area of concern was not permitted to leave their area for work unless they were an ‘authorised worker’ for which a permit was required (see subclause 4.3(1) and subclause 4.3(2));

·that an authorised worker must have had one vaccination dose (or a medical contraindication certificate (see subclause 4.3(3));

·that the vaccination requirement applied from 6 September 2021. This was subsequently amended to 9 September 2021) (see subclause 4.3(3B));

·that an authorised worker would be taken to have complied with subclause 4.3(3) if they had a vaccine appointment on or before Sunday, 19 September 2021 (see subclause 4.3(3C)).

On 28 August 2021 the Respondent sent out a memorandum to staff to advise them of the public health order changes and that:

·If they live or are temporarily staying in a LGA of concern, from 6 September 2021, they must not leave the LGA for work unless they have had at least one dose of a COVID-19 vaccine or evidence of a medical exemption.

·All impacted staff had been sent a survey to collect information regarding their vaccination status and a reply was required.

·If they had already received their first does of a COVID-19 vaccine, they were required to respond providing proof.

·If they were to receive their first does of a COVID-19 vaccine prior to 6 September 2020 they were required to respond and provide proof once vaccinated.

·If they had not received their first does of a COVID-19 vaccine by 6 September 2021, they may be stood down pursuant to s.524 of the Fair Work Act 2009 (Cth)(Act).

The memorandum also included links to information regarding access to priority vaccinations, leave arrangements for getting vaccinations, how to provide evidence of vaccination status and how to access support services.

On 3 September 2021, the Respondent wrote to the Applicant drawing his attention to the requirements under the public health order which, at that time, were due to come into effect on 6 September 2021, and stated:

“…within this context as you…

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: [2022] FWC 841
Decision Date

CaseChat Overview and Summary

Ediz Nidai, a forklift driver for Autonexus Pty Ltd, brought a case before the Fair Work Commission regarding a stand-down order issued by his employer during the COVID-19 pandemic. The stand-down was implemented due to public health orders in New South Wales that required workers in local government areas (LGAs) of concern to have at least one dose of a COVID-19 vaccine to work outside those areas unless they had a medical contraindication preventing vaccination. Nidai, who lived in an LGA of concern, was stood down from 20 September 2021 until 8 October 2021 because he did not meet the vaccination requirements.

The primary legal issue was whether the stand-down was justified under section 524 of the Fair Work Act 2009. Nidai argued that there was no stoppage of work, which is a condition for a stand-down under the Act. The Respondent, Autonexus, maintained that the stand-down was necessary to comply with the public health order, and therefore, the employee could not be usefully employed. The Commission had to determine if the stand-down was lawful and, if not, whether any monetary orders should be made considering fairness between the parties.

The Fair Work Commission found that there was no stoppage of work as defined by the Act. The business operations continued without Nidai, who was unable to leave his LGA for work due to his non-compliance with the vaccination requirement. The Commission noted that while the stand-down was not authorised by the Act, the circumstances were extraordinary due to the pandemic. The Respondent had offered Nidai the opportunity to use accrued leave and informed him about the COVID-19 Disaster Payment. Given these factors, the Commission decided that the considerations of fairness did not support making monetary orders in favour of Nidai. Therefore, the stand-down was deemed not to be pursuant to section 524 of the Act, and no monetary orders were made.

Orders