Sections 524 and 525 Fair Work Act 2009 (the ”Act”) provide that an employer may stand down an employee during a period in which the employee cannot usefully be employed because of a number of circumstances including:
industrial action (other than industrial action organised or engaged in by the employer);
a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown; or
a stoppage of work for any cause for which the employer cannot reasonably be held responsible.
With the recent pandemic, many businesses have found themselves having to stand down employees.
The recent case of Ducuf v Erinfair Pty Ltd T/A Bunbury Farmers Market (“Erinfair”), involved an application by a former employee (the “Applicant”) of Erinfair to the Fair Work Commission to deal with a dispute involving a stand down.
The application was made under s526 of the Act which provides:
"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."
On the evidence, the Applicant was not an employee of the respondent at the time of making the application which was important as the Commission noted that:
" 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…”.
" 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".
It was on this basis that the Commission held that the Applicant was not entitled to bring the application as she was not an employee at the time she filed the application.
The decision makes it clear that any application intended to be brought under s526 of the Act must be done whilst the Applicant is an employee of the relevant company and not after.
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