Teala Arthana v Qantas Ground Services Pty Ltd

[2020] FWC 4395

[2020] FWC 4395

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.526—Stand down

Teala Arthana
v
Qantas Ground Services Pty Ltd
(C2020/5455)

Airport operations
DEPUTY PRESIDENT COLMAN	MELBOURNE, 20 AUGUST 2020

Application for the Commission to deal with alleged stand down dispute

[1] This decision concerns an application made by Ms Teala Arthana under s 526 of the Fair Work Act 2009 (Act). The application seeks to have the Commission deal with an alleged dispute about the operation of Part 3-5 of the Act, which concerns an employer’s right to stand down an employee under s 524.

[2] Until the expiry of her 12-month fixed term contract on 15 July 2020, Ms Arthana was employed by Qantas Ground Services Pty Ltd (QGS) in a fleet presentation role at Melbourne airport. On 1 April 2020, she was stood down, together with many others, because of the unavailability of work due to the COVID-19 pandemic. Ms Arthana was rostered to work again in the last week of June and the first week of July but was again stood down on 8 July 2020. Shortly before the expiry of her contract, Ms Arthana was informed that QGS would not be offering her a further fixed term contract.

[3] Ms Arthana contends that QGS ought to renew her employment with the company and stand her down until normal flight operations resume. She says that the decision of the company not to do this is unfair, in circumstances where casual employees have been stood down. Ms Arthana also says that some permanent employees are being made redundant, and that this will create vacancies that she could fill.

[4] QGS submits that the Commission has no jurisdiction to deal with Ms Arthana’s application because it does not relate to a dispute about the operation of Part 3-5. It says that Ms Arthana’s employment has ended, and that there is no stand down in respect of which there can be a dispute, nor is there any possibility of her being stood down in the future. The company also noted that its casuals have not been stood down but have simply not been allocated work. They remain on the company’s availability list, but are not employed, because a casual employee is only employed from engagement to engagement, not between engagements. QGS also said that the redundancies referred to by Ms Arthana would not create vacancies, because the positions in question are no longer needed.

[5] It is clear that the Commission has no jurisdiction to deal with the application. While it may be accepted that there is a dispute between Ms Arthana and QGS, it is not a dispute about the operation of Part 3-5 of the Act. That Part concerns the stand down of an employee by an employer under s 524. The Part has no operation in the present circumstances, because there is no stand down. Ms Arthana is no longer an employee of QGS. In order to be stood down, Ms Arthana would first need to be reemployed by QGS. Her dispute with QGS is fundamentally about whether she ought to be reemployed.

[6] Even if Ms Arthana were to be reemployed by the company, there would still be no stand down in respect of which there could be a dispute under Part 3-5. There is nothing in the Part that suggests that there are circumstances when an employer ought to stand down an employee. Section 524 confers a right on an employer to stand down employees in the circumstances identified in s 524 (see CFMMEU v DP World Melbourne Limited[2020] FWC 4147 at [37]). If it chooses to exercise this right, the employer is not required to make payments to the employee for the period of the stand down. There cannot be a dispute about the operation of Part 3-5 in respect of an employee’s request or desire to be stood down.

[7] I note that Ms Arthana does not challenge QGS’s decision to stand her down in April or July 2020. Even if she did, a dispute that challenged the lawfulness of a past stand down would invite the Commission to exercise judicial power, which it cannot do, because it has no such power (see CFMMEU v DP World Melbourne Limited, above, at [46]-[48]). The Commission can neither declare that an employer has failed to comply with s 524, nor order that an employer pay wages due to an employee because of that non-compliance. Only a court can make orders of this kind.

[8] For the above reasons, the application is dismissed for want of jurisdiction.

DEPUTY PRESIDENT

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