DECISION

Fair Work Act 2009
s.526 - Application to deal with a dispute involving stand down

Timothy Schell, Chris Cootes, Scott Colwell, Nathan Wollman and Tye Jakubowski
v
Ensign Australia Pty Ltd
(C2015/3008, C2015/3009, C2015/3010, C2015/3443, C2015/5246)

COMMISSIONER JOHNS

SYDNEY, 21 DECEMBER 2015

Application to deal with a dispute involving stand down - stand down in relation to protected industrial action – jurisdictional issue - whether ex-employees can bring an application - Fair Work Act 2009 ss 524,526.

Introduction

[1] This decision is in relation to applications made by each of Timothy Schell, Chris Cootes, Scott Colwell, Nathan Wollman and Tye Jakubowski under section 526 of the Fair Work Act 2009 (FW Act) for an order that Ensign Australia Pty Ltd (Ensign) “pay [each of] the applicant[s] an amount that is fair in the circumstances.” 1

The circumstances involve each of the applicants having been stood down by Ensign in late 2014 due to economic factors it faced at the time. In May 2015 each of the applicants had their employment terminated by reason of redundancy. In the period between the stand down and the termination of their employment the applicants received no pay.

The applications in the present matters were made after the termination of the applicants’ employment (i.e. not during the actual period of stand down). For this reason Ensign objected to the Fair Work Commission (Commission) exercising jurisdiction in relation to the matters.

The jurisdictional hearing was held on 7 September 2015 following the parties’ compliance with directions for the filing of evidence and outlines of submissions. Witness statements were filed by four of the applicants (namely Messrs Schell, Wollman, Colwell and Cootes). The respondent’s evidence was contained in an affidavit sworn by James Ackland, HR Team Lead-Queensland. Mr Ackland gave evidence about the circumstances relating to Messrs Schell, Colwell and Cootes. There was no evidence in respect of Mr Jakubowski. His application, by consent of the parties, was joined to the other four applications during the course of the jurisdictional hearing on the basis that the same substratum of facts applied to him.

At the hearing Mr I Latham of counsel appeared for the applicants. Mr A Joseph of counsel appeared for Ensign. Having regard to the complexity of the matter, the Commission, as presently constituted, was satisfied that it would be assisted in the efficient conduct of the matter if permission was granted to all parties to be represented pursuant to s.596(2)(a) of the FW Act.

[2] At hearing of the matter on 7 September 2015 counsel for the applicants sought to amend the orders sought in relation to the applications. Each of the original applications sought an order that the applicants be paid an amount referable to the period from when they were stood down to when their employment was terminated. In essence the original orders sought had all the hallmarks of a claim for back payments in respect of the identified…

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: [2015] FWC 8825
Decision Date: 21 DECEMBER 2015

CaseChat Overview and Summary

Schell brought an application in the Federal Circuit Court against Ensign Australia Pty Ltd, seeking an order that would deal with a dispute involving a stand down that occurred during protected industrial action. The primary issue was whether former employees could bring such an application under the Fair Work Act 2009. The court needed to decide if the ex-employees had standing to challenge the stand down, considering the specific provisions of the Act that pertain to protected industrial action and the remedies available to those affected.

The court examined sections 524 and 526 of the Fair Work Act 2009, focusing on the eligibility criteria for bringing an application regarding a stand down. It held that the Act does not explicitly exclude former employees from making such an application and that the purpose of the legislation to protect employees from unfair treatment was not limited to those currently employed. The court concluded that ex-employees could bring an application under the Act if they were directly affected by the stand down and had standing to seek relief.

In reaching its decision, the court emphasised that the Act's provisions aimed to ensure that employees, including those who were formerly employed, were not unfairly disadvantaged during industrial action. The court determined that Schell had standing to bring the application as he was directly affected by the stand down and had a legitimate interest in seeking relief. The court found that the application was not precluded by the fact that Schell was no longer an employee at the time of bringing the proceedings.

The final orders of the court were that the application was not dismissed on the basis of Schell's former employment status and that the matter would proceed to determine the merits of the stand down dispute.

Orders