Irene Ducut v Erinfair Pty Ltd T/A Bunbury Farmers Market

[2021] FWC 689

[2021] FWC 689

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.526—Stand down

Irene Ducut
v
Erinfair Pty Ltd T/A Bunbury Farmers Market
(C2021/154)

COMMISSIONER WILLIAMS PERTH, 11 FEBRUARY 2021

Application to deal with a dispute involving stand down.

[1] This decision concerns an application filed by Ms Irene Ducut (the Applicant) on 11 January 2021. The Respondent is Erinfair Pty Ltd (T/A Bunbury Farmers Market or the Respondent).

[2] The application is for the Commission to deal with a stand down dispute. The application was made under section 526 of the Fair Work Act 2009 (the Act).

[3] The application was the subject of a telephone conference on Wednesday, 10 February 2021 which Ms Ducut attended as did Mr L Johnston on behalf of the Respondent.

[4] Section 526 of the Act is set out below:

“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.”

[5] Subsection 526(3) of the Act prescribes that the Commission can deal with a stand down dispute only on application by, amongst others, “an employee who has been, or is going to be, stood down…”.

[6] The Respondent asserted in its written reply to the application and Ms Ducut confirmed during the conference that she tendered her resignation on 7 December 2020 and this took effect on 21 December 2020, which obviously was before she made this application.

[7] I am satisfied therefore that at the time of making the application the Applicant was not an employee of the Respondent.

[8] It has been held previously by the Commission in a number of other decisions that only a person who is an employee at the time of making the application (and whom has been or is going to be stood down) is entitled to make an application under section 526 of the Act. 1

[9] Consequently, in Ms Ducut’s circumstances she is not able to make this application because she was no longer employed at the time she made the application with the Commission.

[10] The application is beyond jurisdiction and it will now be dismissed. An order [PR726842] to that effect will be issued.

Printed by authority of the Commonwealth Government Printer

<PR726841>

 1   See [2015] FWC 8825 at [22] and [2020] FWC 4168 at [7].