A recent Full Bench decision of the Fair Work Commission (the Commission) has provided some important commentary on the Stand Down provisions of the Fair Work Act 2009 (Cth) (the Act) and how they relate to schools.
The decision of Peninsula Grammar School (the School) v Independent Education Union of Australia (the Union) was an appeal by the School in relation to a decision of a single Commissioner who found in favour of the Union that the stand down of three non-teaching staff from August to September during the Victorian lockdown to be unlawful.
Brief Background
As a result of the requirements on schools during the Victorian Government imposed lockdown, the School moved to a remote learning program which resulted in the closure of the physical operation of the School. As a result of this decision, the School advised its non-teaching staff that they were required to work from home for the foreseeable future and, where work could not be performed at home, they would be placed on paid leave for the short term. Staff were also advised that it would be necessary for the School to consider standing down some employees and that a consultation process concerning this would be conducted.
Of the three affected employees, two were part-time Library Technicians who ordinarily worked in the Junior School library performing tasks associated with assisting students as well as general administrative duties. The third employee was a classroom assistant in the Junior School. In short, the School advised the three employees that as a result of the move to remote learning, it was unable to offer them any useful work and they were stood down for approximately four weeks.
The Union’s Argument
In its submission to the Commission at first instance, the Union contended that:
- there was no stoppage of work within the meaning of s 524(1)(c) of the Act and the School continued to conduct its business in a modified form through remote learning;
- the employees could have been usefully employed performing various duties notwithstanding the move to remote learning; and
- if there was a stoppage of work, the School could reasonably be held responsible because it was its decision not to explore or offer alternative work opportunities for affected employees.
The Legislation
Section 524 of the Act sets out the requirements for standing down employees. Specifically, Section 524(1)(c) of the Act states that:
An employer may, under this subsection, stand down an employee during a period in which the employee cannot usefully be employed because of one of the following circumstances…
c. a stoppage of work for any cause for which the employer cannot reasonably be held responsible.
It is important to note that if an Enterprise Agreement or Employment Contract applies to an employee and these documents have Stand Down provisions, that s524(1) of the Act does not apply to the employee and the relevant provisions of the Enterprise Agreement or Employment Contract apply in lieu.
The Full Bench’s Consideration
The Full Bench provided some very useful commentary with respect to section 524(1). It held that:
In order for a stand down of an employee to be authorised by s 524(1), two conditions must be satisfied:
the employee cannot be usefully employed during the period of the stand down; and
this must be because of one of the circumstances in paragraphs (a), (b) or (c) of s 524(1).
Where s524(1)(c) is the relevant circumstance relied upon, two elements must be satisfied:
- there must have been a stoppage of work; and
- the employer cannot reasonably be held responsible for the stoppage.
‘Usefully Employed’
Relevant to all employers, especially schools, the Full Bench held that if the employee can be usefully employed during the period, then the stand down would not be authorised by s524(1). To provide further clarity to the term ‘usefully employed’, the Commissioners looked to the Explanatory Memorandum of the Fair Work Bill 2008. It stated:
“An employer can only stand down an employee if they cannot be usefully employed. If the employer is able to obtain some benefit or value for the work that could be performed by an employee, then the employer would not be able to stand down an employee.”
The Commissioner’s provided further commentary on ‘usefully employed’ citing an earlier decision of the Commonwealth Industrial Court which stated:
“An employee may be usefully employed, notwithstanding that the employee cannot perform their normal duties, if alternative duties of benefit to the employer are available to be performed”.
These comments are very important for schools. The reason is because schools are, by their very nature, multi faceted businesses. They are frequently situated on a reasonably large parcel of land and have many structural and non-structural assets. In light of this, there are frequently many low skill-based tasks which staff (especially non-teaching staff) could undertake even though these tasks may not fall within their ordinary duties.
Stoppage of Work
The Full Bench also confirmed that work stopping in the School’s library and its classrooms as direct consequence of the lockdown was a ‘stoppage of work’ for which the School could not be held responsible.
Outcome and Take Home Message
Unfortunately, and for reasons not relevant to this e-mail alert, neither the Commissioner nor the Full Bench made a determination on the issue of the three employees being ‘usefully employed’ elsewhere at the School.
That said, the important lessons are that:
- if schools are required to deliver their curriculum remotely as a result of a forced lockdown in the future, then it is very important that they conduct a thorough review of their operations to determine if any affected staff can undertake work that the School is able to “obtain some benefit or value” from; and
- any such review ought to be recorded in writing and signed by the Head / Principal. Of course, if there is work for which the School can “obtain some benefit or value”, then the provisions of s524(1) will not be available.
Ben Foley is a Special Counsel of Education and Workplace law at Clifford Gouldson Lawyers.