Fair Work Act 2009
s.526—Stand down

Construction, Forestry, Maritime, Mining and Energy Union
v
British Concrete Pty Ltd T/A British Concrete
(C2022/1360)

Alleged dispute about stand down of employee – employee not vaccinated for COVID-19 – whether stand down under s.524 of the Fair Work Act 2009 (Cth).

[1] Mr Marwan Salha is a concreter and member of the Construction, Forestry, Maritime, Mining and Energy Union. He has been employed by British Concrete Pty Ltd for approximately 13 years. He last performed work for the business on or about 6 July 2021. Since 20 July 2021, he has been absent (mostly without pay) due in large part to his decision not to be vaccinated against COVID-19.

[2] The periods of Mr Salha’s absence can be divided into four distinct categories. From 6 July 2021 to 20 July 2021, Mr Salha was required to isolate at home due to a potential COVID-19 exposure at work. He was paid by British Concrete for this period. From 19 July 2021 to 31 July 2021, the construction industry was closed by NSW public health order and Mr Salha was prevented from attending for work. From 31 July 2021 to 10 October 2021, Mr Salha was also prevented from attending for work or leaving his local area as he was not vaccinated against COVID-19 and lived in what was then known as a local government “area of concern”. Mr Salha was not paid wages by British Concrete for this period and instead received government COVID-19 support payments. There is no dispute over the facts pertaining to these first three authorised absences from work.

[3] The fourth period of absence commenced on 11 October 2021, when public health orders preventing Mr Salha’s attendance at work were lifted. However, Mr Salha remains unvaccinated against COVID-19. He has been told by British Concrete that vaccination is a condition of his return to work. From 11 October 2021 to 5 December 2021, this advice was in the form of a direction to Mr Salha (the nature of which is in dispute). From 6 December 2021, British Concrete’s Vaccination Policy commenced operation. Under the policy, employees are required to be vaccinated against COVID-19. Unvaccinated employees who cannot provide a medical contraindication certificate are not permitted to attend work. As a result, Mr Salha remains absent from work and has not been paid except for public holidays since 11 October 2021.

[4] On 24 February 2022, the Construction, Forestry, Maritime, Mining and Energy Union applied to the Commission on behalf of Mr Salha to deal with a dispute about stand down under section 526 of the Act.

[5] The question is whether Mr Salha has been stood down by British Concrete under section 524 of the Act. This affects whether the Union has standing to apply to the Commission under section 526. I have decided that Mr Salha has not been stood down under section 524 and the Union cannot apply to the Commission under section 526 to deal with the dispute in relation to Mr Salha. These are my reasons.

Standing down an employee under the Fair Work Act 2009

[6] Section 524 of the Act permits an employer to stand down employees under subsection 524(1) in certain circumstances. The words of section 524 are these:

“(1) 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:

(a) industrial action (other than industrial action organised or engaged in by the employer);

(b) a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown;

(c) a stoppage of work for any cause for which the employer cannot reasonably be held responsible.

(2) However, an employer may not stand down an employee under subsection (1) during a period in which the employee cannot usefully be employed because of a circumstance referred to in that subsection if:

(a) an enterprise agreement, or a contract of employment, applies to the employer and the employee; and

(b) the agreement or contract provides for the employer to stand down the employee during that period if the employee cannot usefully be employed during that period because of that circumstance.

Note 1: If an employer may not stand down an employee under subsection (1), the employer may be able to stand down the employee in accordance with the enterprise agreement or the contract of employment.

Note 2: An enterprise agreement or a contract of employment may also include terms that impose additional requirements that an employer must meet before standing down an employee (for example requirements relating to consultation or notice).

(3) If an employer stands down an employee during a period under subsection (1), the employer is not required to make payments to the employee for that period.”

[7] Section 526 of the Act permits the Commission to deal with stand down disputes. It says this:

“(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.”

[8] The Union submits that Mr Salha has been stood down under section 524 unlawfully, because he was stood down in circumstances other than those listed in the section. The Union seeks orders for payment to Mr Salha of wages for the period he has been stood down, or such other compensation that is fair in all the circumstances.

[9] British Concrete submits that Mr Salha has not been stood down under section 524 of the Act. It submits that Mr Salha has been unwilling to comply with its lawful and reasonable requirement that he be vaccinated against COVID-19 as a condition of attendance at work. British Concrete submits that the Union has no standing to apply for orders under section 526 and there is no basis for orders requiring Mr Salha to be paid, either as wages or other compensation, for his absence from work.

Has Mr Salha been stood down under s.524?

[10] The Commission can only deal with a stand down dispute on application by a person who is eligible to apply. Relevantly, a person is eligible to apply if they are:

1. An employee who has been, or is going to be stood down under subsection 524(1) (even purportedly);

2. An employee on authorised leave at their request to avoid being stood down under subsection 524(1); or

3. A union entitled to represent an employee in (1) or (2) above.

[11] Section 524 is a permissive provision. It permits an employer to stand down an employee in certain circumstances and also to withhold payment from the employee for the stand down period. The language of the provision, including the use of the word “may” in subsection 524(1), the words “may not” in subsection 524(2) and the word “if” in subsection 524(3), as well as the notion of a purported stand down in subsection 526(3), makes clear that standing down an employee is a choice available to an employer if one or more of the identified circumstances in subsection 524(1) arise. An employer is not required to stand down their employees in those circumstances, and there is nothing in the language of section 524 to suggest that employees are taken to be stood down under the provision in certain circumstances. Whether a person has been stood down under section 524 of the Act is a question of fact. The relevant facts in this matter are these.

[12] On 6 October 2021, NSW reached its 70% vaccination target, triggering the first step of a phased reduction in government support payments for employees who were unable to work because of COVID-19-related restrictions. That same day, Mr Mark Di Michiel, Managing Director of British Concrete, rang Mr Salha. Mr Di Michiel says Mr Salha indicated to him that he did not want to return to work until December; was afraid of the vaccine and did not want to get vaccinated; and was not in a rush to return to work as he was receiving government support payments. Mr Di Michiel says he told Mr Salha he would do his homework and get back to him.

[13] Mr Salha denies much of this conversation. He recalls that Mr Di Michiel asked him if he was going to get vaccinated. Mr Salha asked why he had to get vaccinated if it was not mandatory for construction workers and the lockdown was about to end. He asked when he could come back to work, to which Mr Di Michiel replied that he would do his homework and get back to him.

[14] The two accounts of this conversation are mostly consistent although they differ in relation to whether Mr Salha said he did not want to return to work until December, was not in any rush to return to work, and did not want to get vaccinated because he was afraid of the vaccine. I accept Mr Salha’s account of the conversation and find that Mr Di Michiel must have told Mr Salha that he needed to be vaccinated before returning to work. This was the context for the discussion about Mr Salha’s vaccination status and his question about why he had to get vaccinated.

[15] To the extent that Mr Di Michiel’s recollection differs, I find that this is likely due to the merging of memory about what was actually said and what Mr Di Michiel understood from the conversation, both at the time and in the weeks that followed. When Mr Salha asked why he had to get vaccinated if it was not mandatory, it is more likely than not that Mr Di Michiel understood Mr Salha to be resisting vaccination, as indeed he was. It is also likely that he assumed this was due to fear. When Mr Salha asked when he could come back to work (rather than why not next week, for example) and did not then make further contact for four weeks, Mr Di Michiel likely formed the impression that Mr Salha was in no rush to return (even though it was Mr Di Michiel who had said that he would come back to Mr Salha). I find that Mr Salha also told Mr Di Michiel that he was receiving COVID-19 support payments, given the coincidence of timing between the conversation between them and the reduction in support payments on 6 October 2021.

[16] The COVID-19 disaster payment for workers in NSW came to an end on Saturday 30 October 2021. The following Wednesday, 3 November 2021, Mr Salha rang Mr Ken Calland, British Concrete’s Construction Manager. During the conversation, Mr Salha asked Mr Calland when he could come back to work. Mr Calland replied, in words to the effect:

“You need to be vaccinated to come back to work. Most of our jobsites are requiring double jabs. Are you going to take the vaccine?”

[17] Mr Salha replied, in words to the effect:

“I don’t want to be jabbed.”

[18] Mr Calland said he would get back to Mr Salha.

[19] On 11 November 2021, Mr Salha and Mr Calland spoke again. Mr Salha said he wanted to come back to work. Mr Calland replied, in words to the effect:

“You need to be vaccinated to come back to work. Talk to Mark (Di Michiel).”

[20] Mr Salha then rang Mr Di Michiel. He said he wanted to come back to work. Mr Di Michiel replied to the effect that he had to be double vaccinated. Mr Salha again resisted, pointing out that vaccination was not mandatory for the construction industry and that not all of the company’s jobs had vaccination as a condition of entry to site. Mr Di Michiel said that most of the businesses’ clients required vaccination. He again said he would do his homework and get back to Mr Salha.

[21] On 12 November 2021, Mr Salha was sent a group email from Ms Hilary Cairns, Project Engineer for British Concrete, about a proposal to consult on the introduction of a COVID-19 policy, including mandatory vaccination for all workers in the office and on job sites, additional control measures on unvaccinated employees, health surveillance and testing and other COVIDSafe measures. The email advised that a video conference for all workers would be organised for the following week. It invited any questions, queries or feedback for the purposes of that discussion.

[22] Mr Salha responded to the email by saying:

“Hi Hilary,

Just read email relating to the covid 19 vaccine I my self is not vaccinated. I am happy to test and wear mask for a safety plan. I would like to return to work ASAP.

Regards,

Marwan”

[23] Mr Salha also forwarded a link to Ms Cairns from a NSW Government website about rules for persons who are not fully vaccinated. A follow up message said:

“Sent the NSW Government updated on the 9th November “the not vaccinated rules and mandates construction work can resume as normal please see attached.”

[24] Ms Cairns replied:

“Hi Maran,

Thanks for your feedback in regards to COVID19 policy were are looking into.

While the NSW Government has changed their guidelines about unvaccinated workers on constructions sites- this does not mean that our clients have changed their site access conditions – the majority of our clients have kept rules in which all workers must be vaccinated to work onsite.

BC is working through the consultation process with all workers about unvaccinated workers returning to work.

Kind regards

Hilary Cairns”

[25] On 17 November 2021, Ms Cairns sent another group email to employees about its proposed COVID19 Vaccination Policy. The email contained a copy of the draft policy and a survey link for employees. It also offered online consultation meetings on request. The draft policy required and directed employees to return to work, either in the office or on site, from 1 December 2021, by which time they were to have had at least one dose of a COVID-19 vaccination. It stated that employees who were not vaccinated and unable to provide a medical contraindication certificate would not be permitted to attend the office or site, and would also be held in breach of a lawful and reasonable direction from the Company, constituting serious misconduct.

[26] On 23 November 2021, Ms Cairns sent a further group email to employees about the COVID19 Vaccination Policy. The email provided information about the survey responses from employees and answered two questions asked in the comments section of the survey. The survey responses showed that of the 16 employees who responded, 62.5% supported the COVID19 Vaccination Policy and 25% did not support it.

[27] On 6 December 2021, the COVID19 Vaccination Policy came into effect, with the deadline for compliance with the return to work and vaccination directions amended to 14 December 2021. A copy of the policy was circulated to employees, including Mr Salha, on 7 December 2021.

[28] Also on 6 December 2021, the Union sent a letter to Mr Di Michiel on behalf of Mr Salha. The letter asserted that Mr Salha was unlawfully stood down under Part 3-5 of the Act and sought payment of wages from the period since 30 July 2021. It also sought additional time for Mr Salha to obtain relevant medical advice and consider his position in relation to vaccination, asked that he be permitted to return to work immediately on the basis that he wear a mask and be tested daily for COVID-19, and sought information generally about the COVID19 Vaccination Policy.

[29] On 17 December 2021, Master Builders Association responded to the Union on behalf of British Concrete, advising that the revised COVID19 Vaccination Policy had come into effect on 6 December 2021 and confirming the decision of British Concrete that Mr Salha was not permitted to attend work while unvaccinated, a direction it considered both lawful and reasonable in the circumstances. It offered more time for Mr Salha to obtain medical advice and indicated that he was welcome to return to work upon compliance with the policy.

[30] On 22 December 2021, the Union responded to the Master Builders Association setting out issues in dispute, raising issues with consultation about the COVID19 Vaccination Policy, reiterating the unlawful stand down assertion and sought payment for Mr Salha for the period on and after 11 October 2021. The Master Builders Association responded to the letter on 23 December 2021, denying that Mr Salha had been stood down under section 524 of the Act, that he would not be paid for the period from 11 October 2021 and confirming that his job was ready and waiting for him if he would abide by the policy. The Union responded on 24 January 2022, restating but modifying its earlier position in relation to the claim for payment and foreshadowing an application to the Commission in relation to the alleged stand down if the matter could not be resolved.

[31] There is nothing in the chronology above to support a finding that British Concrete sought to exercise its right to stand down Mr Salha under section 524 of the Act, either actually or purportedly. For the period until 10 October 2021 inclusive, Mr Salha was prevented from attending for work by his obligation to comply with public health orders. On 6 October 2021, Mr Salha was told that he needed to be vaccinated to return to work. This advice to Mr Salha was in the form of a direction from British Concrete under Mr Salha’s contract of employment. Whether the direction was lawful and reasonable is not necessary to decide in circumstances where the application is not properly before the Commission. The same direction was confirmed with Mr Salha on 3 and 11 November 2021. The direction was later supplanted on 6 December 2021 by the COVID19 Vaccination Policy, which itself contained a direction that all employees be vaccinated against COVID-19 as a condition of their attendance at work on and after 14 December 2021.

Conclusion

[32] British Concrete did not stand Mr Salha down under section 524 of the Act, and nor did it purport to stand him down under the provision. Mr Salha did not request leave to avoid being stood down and no such request was authorised by British Concrete. Instead, British Concrete directed Mr Salha to comply with a requirement to be vaccinated as a condition of attendance at work. Mr Salha was not willing to comply with the requirement. The consequence of his decision was that Mr Salha has not been permitted to attend for work since 11 October 2021.

[33] It follows that Mr Salha is not an employee covered by subsection 526(3) of the Act, and the Union has no standing to apply for orders under section 526 on his behalf.

[34] The application is dismissed.

COMMISSIONER

Hearing details:

Determined on the papers.

Printed by authority of the Commonwealth Government Printer

<PR743577>