Janet Margaret Stace v Complete Office Supplies/Complete Office Staffing Pty Ltd

[2022] FWC 2915

[2022] FWC 2915

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.526—Stand down

Janet Margaret Stace
v

Complete Office Supplies/Complete Office Staffing Pty Ltd

(C2022/5994)

COMMISSIONER SCHNEIDER PERTH, 2 NOVEMBER 2022

Application to deal with a dispute involving stand down

1. This decision concerns an application brought under section 526 of the Fair Work Act 2009 (Cth) (the Act) by Ms Janet Stace (the Applicant) in relation to an alleged dispute about the operation of Part 3-5 of the Act. The dispute concerns the decision of her former employer, Complete Office Staffing Pty Ltd (the Respondent), to stand down the Applicant from 28 February 2022 to 16 August 2022, when her employment was terminated. The application was lodged in the Fair Work Commission (the Commission) on 30 August 2022.

1. The Applicant says that the stand down was unlawful because none of the circumstances listed in section 524(1) of the Act applied during the relevant period. She says that the Respondent’s reason for the stand down was due to her COVID-19 vaccination status, but that this did not meet the definition of a stoppage of work under the Act. The Applicant further contends that she could have been usefully employed during the period of the stand down had the company considered alternative arrangements, including working from home. The Applicant asks the Commission to order that the Respondent pay her wages for the period of the stand down. The Respondent objects to the application on the basis that the Applicant does not have standing to bring the application because she was not an employee of the Respondent at the time her application was lodged.

1. The application was listed for conference but did not resolve. I issued directions for the filing and service of submissions. I advised the parties that I proposed to determine the matter on the papers. Neither party objected to this course. The parties filed their respective submissions and materials. The Respondent provided the Applicant further materials regarding the stand down and the Respondent’s COVID-19 response policies.

Relevant law

1. Section 524(1) of the Act provides that an employer may stand down an employee during a period in which the employee cannot usefully be employed because of one of the following circumstances: industrial action; a breakdown of machinery or equipment; or a stoppage of work for any cause for which the company cannot reasonably be held responsible. Section 526(1) of the Act allows the Commission to deal with a dispute about the operation of Part 3-5, and section 526(2) of the Act states that it may do so by arbitration. The note to that section states that the Commission may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion.

1. Section 526(3) of the Act limits the power of the Commission to deal with disputes about the operation of Part 3-5. It states that the Commission may deal with a dispute ‘only on application by any of the following’. Section 526(3)(a) then refers to ‘an employee who has been, or is going to be, stood down under subsection 524(1) (or purportedly under subsection 524(1))’. I understand the Applicant to contend that she is a person described in section 526(3)(a) of the Act.

1. The Commission, in several previous decisions, has held that only a person who is an employee at the time of making the application is entitled to make an application under section 526 of the Act.[1]

Consideration

1. The Applicant lodged her application on 30 August 2022. Her employment with the Respondent ended on 16 August 2022. At the time she lodged her application, the Applicant was not an employee who had been stood down under section 524(1) of the Act. At the time of making her application, the Applicant was a former employee who had been stood down in the past during her employment with her former employer. The Applicant is therefore not a person who is able to make an application under section 526 of the Act and the Commission cannot deal with the application.

Conclusion

1. For the above reasons, the application is dismissed for want of jurisdiction. An Order dismissing the matter has been issued.[2] I also note that the Applicant has lodged an application for an unfair dismissal remedy in the Commission regarding the termination of her employment with the Respondent. The unfair dismissal matter has recently been allocated to my Chambers and the parties will be contacted regarding that matter shortly.

COMMISSIONER

[1] For example, see: [2015] FWC 8825; [2020] FWC 4168; [2021] FWC 6631; and [2021] FWC 657.

[2] [PR747528].

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