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

Ms Shelley Eder
v
Charles Darwin University
(C2021/7967)

Application to deal with a dispute involving stand down

[1] Ms Shelley Eder (the Applicant) is a lecturer at the Charles Darwin University (the Respondent).

[2] The Applicant was initially employed on a contract basis in 2013, but employed full-time since 2016.

[3] On 18 March 2020, a state of emergency was declared in the Northern Territory under the Public and Environmental Health Act (NT) 2011. On 13 October 2021, the Chief Health Officer (CHO) issued a Direction (CHO 55) mandating COVID-19 vaccinations for workers to attend work in certain circumstances.

[4] The relevant provisions of CHO 55 to the Applicant’s circumstances are:-

“4 These Directions apply to the following workers:

(a) a worker who, during the course of work, is likely to come into contact with a vulnerable person;

(b) a worker who is at risk of infection with COVID-19 because the worker, during the course of work, is likely to come into contact with a person or thing that poses a risk of infection;

(c) a worker whose workplace poses a high risk of infection with COVID-19;

(d) a worker who performs work that is necessary for the operation or maintenance of essential infrastructure or essential logistics in the Territory.

Note for direction 4(a)

To determine whether a person is a vulnerable person, a worker can ask the person directly or assume they are vulnerable if the worker is unsure. If a person does not disclose their vaccination status to a worker, the worker should assume the person is vulnerable.

5 The provisions of the Schedule are to be used in determining whether these Directions apply to a worker under direction 4.

Part 2 Vaccination for attendance at workplace

6 For the period starting on 13 November 2021 and ending on 24 December 2021, a worker who has not received the first dose of an approved COVID-19 vaccine must not attend the worker's workplace.

7 On and from 25 December 2021, a worker who has not received 2 doses of an approved COVID-19 vaccine must not attend the worker's workplace.

Note for direction 7

It is expected that a third dose will be required for these workers in 2022. These Directions will be amended to add that requirement when the medical advice is more definite.

8 Despite directions 6 to 7, a worker may attend the worker's workplace without being vaccinated with an approved COVID-19 vaccine if the worker has evidence of a contraindication to all approved COVID-19 vaccines.

…

Schedule Provisions to interpret whether these Directions apply to worker

direction 5

1 For direction 4(a), workers who, during the course of work, are likely to come into contact with a vulnerable person include the following:

(a) workers who work with children, such as teachers, child care workers, tutors, gym coaches and swimming instructors;…”

[5] The Applicant has not complied with CHO 55. The Applicant was stood down by correspondence on 15 November 2021.

“Ms Shelley Eder
Lecturer in Law

15 November 2021

Dear Shelley,

RE: NOTIFICATION OF STAND DOWN

As previously advised the University required proof you have received your first dose of vaccination or vaccination exemption by 12 November 2021 in order for you to attend the workplace from 13 November, and that you have received, or have made a booking to receive a second dose by 24 December 2021.

The Northern Territory Government Chief Health Officer (CHO) Direction 55 (the CHO Direction), requires that 'a worker who, during the course of work, is likely to come into contact with a vulnerable person' or 'a worker whose workplace poses a high risk of infection with COVID-19' must be vaccinated with an approved COVID -19 vaccine.

The CHO Direction provides that from 13 November 2021, workers who have not received their first dose must not attend the workplace, and that from 25 December 2021, workers who have not received their second dose must not attend the workplace.

At this point in time, the University has not received the required information from you therefore you are no longer authorised to attend any Northern Territory campus or workplace effective immediately.

If you have not already applied for leave through Staff-Online you will be placed on Leave Without Pay effective immediately for a period of two (2) weeks.

During this time, you are directed to provide the University with confirmation of your vaccination in accordance with the CHO Direction via eCentre. This Leave Without Pay period will cease at any time during this two (2) weeks period upon your presentation to CDU of your proof of vaccination or medical exemption certificate.

If you have received your COVID-19 vaccination or hold a medical exemption certificate as per the CHO Direction, please submit your certificate, using the eCentre application located in the CDU Portal immediately. Alternatively:

•  email a copy to [address redacted], or

•  show your certificate to your manager, or

•  show your certificate to a member of the People and Culture team.

Vaccination certificates submitted must show the date/s of vaccination and the following is accepted by the University as proof of vaccination for COVID-19:

•  Medicare COVID-19 Digital Certification

•  COVID-19 Immunisation history statement

As set out in the CHO Direction clause 9, the following is accepted by the University as proof of medical contraindication/exemption:

•  Letter from a medical practitioner stating a contraindication to current COVID -19 vaccines.

If you believe you have received this notification in error, please contact your supervisor or People and Culture immediately to discuss further and to verify your vaccination status.

Yours sincerely,

Professor Scott Bowman AO
Vice -Chancellor and President”

[6] The Applicant submitted that the Respondent has no power to stand her down because the provisions of the Charles Darwin University and Union Enterprise Agreement 2018 (the Agreement) do not allow for the stand down of full-time employees.

[7] Further, the Applicant stated that s.524 of the Fair Work Act 2009 (the Act) only provides a limited scope upon which an employer can stand down an employee. Section 524 provides:

“524 Employer may stand down employees in certain circumstances

(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.”

The Applicant argued that the current situation emanating from CHO 55 does not satisfy this section of the Act on the basis that there is no dispute that she can be usefully utilised by the Respondent.

[8] The Applicant seeks the following remedy from the Fair Work Commission (the Commission).

“Orders Sought:

1) Order revoking the unauthorised leave without pay period 13 November 2021 until 1 March 2022 and back pay of the unpaid period; or Order requiring compensation for the unpaid period including adequate compensation for loss of annual and other leave entitlements for the period 13 November 2021 until 1 March 2022; and

2) Order that the University revokes the ban on unvaccinated or deemed unvaccinated workers from attending the workplace; or Order requiring the University give due consideration to accommodating working from home for workers who do not meet the requirements of Cho No 55.”

[9] The Respondent raised two jurisdictional objections which it says prevents the Commission from dealing with the Applicant’s application.

[10] Firstly, although the initial correspondence indicates that the Applicant has been stood down, in reality, the Applicant was placed on leave without pay due to her non-compliance with CHO 55.

[11] The Respondent submitted that it had no choice but to place the Applicant on leave without pay because the University is bound by CHO 55 and the Applicant had not received her first vaccination by 13 November 2021.

[12] The Respondent argued that s.524 is not relevant because none of the scenarios envisaged in s.524 refer to the situation in the Norther Territory, ie, a state of emergency and a direction from the CHO, mandating what must happen in the Respondent’s operation.

[13] Secondly, the Respondent submitted that the Applicant has not followed the Disputes Procedure in the Agreement. Clause 60 of the Agreement states:-

“60. Dispute Resolution

60.1 For the purposes of this clause:

60.1.1 A dispute means matters arising under the Agreement or in relation to the NES; and

60.1.2 Dispute procedure means the procedure set out in this clause.

60.2 All parties to the Agreement are able to raise a dispute and be represented in the dispute procedure.

60.3 Each step in the dispute procedure is mandatory and must be followed before proceeding to the next step.

(My emphasis)

60.4 While the dispute procedure is being conducted;

60.4.1 work will continue in the normal manner unless the Employee has a reasonable concern about imminent risk to their health and safety; and

60.4.2 neither party to the dispute will take actions to exacerbate the dispute whilst a matter is being dealt with under this clause.

60.5 Parties to the dispute will attempt to resolve the issues at the local level in the first instance.

60.6 Where the dispute is not resolved, or is impracticable to settle locally, either party to the dispute may refer the dispute to the Director, People and Capability in writing.

60.7Where a dispute is lodged, it shall:

60.7.1 set out in writing the provision of the Agreement or NES to which the dispute relates; and

60.7.2 state the outcome being sought.

60.8 Upon receipt of written notice of a dispute to the Director, People and Capability, the parties will discuss the dispute and attempt to reach agreement within ten (10) working days.

60.9 The parties may agree to adopt an interim resolution on a trial basis.

60.10 If the dispute is resolved, all parties will be notified in writing as soon as practicable of the details of resolution.

60.11 If the dispute is not resolved by the Director, People and Capability within fifteen (15) working days of the written notice of the dispute:

60.11.1 either party may refer the dispute to the FWC; or

60.11.2 by agreement, to another person or body for resolution.

60.12 If the dispute is referred to:

60.12.1 the FWC, the FWC may deal with the dispute through conciliation and/or arbitration in order to resolve the dispute; or

60.12.2 another person or body, then that person or body may deal with the dispute as agreed by the parties.

60.13 The parties agree to be bound by and implement any order, decision or recommendation of the FWC or other applicable person/body as agreed by the parties.

60.14 If the dispute is not referred to the Director, People and Capability or FWC for resolution within fifteen (15) working days or otherwise agreed between the parties, then the disputes lapses.

60.15 The parties to a dispute may extend timeframes under this clause by written agreement.”

[14] It is not in dispute that the Applicant did not follow the stepped process in the Disputes Procedure. The Respondent argued that the Applicant’s application to the Commission is therefore premature. As a result, the Commission has no capacity to deal with the dispute.

Consideration

[15] I have taken into account all of the submissions that have been provided by the parties. The fact that a submission or issue is not mentioned in this decision does not mean that it has not been taken into account.

[16] The Applicant argued that she could have performed her role from home on the basis that there were no lectures planned or given during the period 13 November 2021 – 1 March 2022. I advised the Applicant that the Commission does not have the capacity to direct any employer to offer a ‘work from home’ option to any employee, no matter what circumstance or logic may be present in the circumstance. I also advised the Applicant that the Commission does not have the jurisdiction to compel the Respondent to either abide by or ignore CHO 55. That power rests with the Norther Territory Supreme Court. I have taken this into account.

[17] The Respondent has made a decision that it must comply with CHO 55 and that it is mandatory for the Applicant to be vaccinated, in accordance with the Direction, in order for her to resume her duties for the Respondent. I advised the Applicant that, in my view, the Commission does not have the jurisdiction to determine an alternate outcome on this issue. I understand that there is currently a case before the Supreme Court of the Northern Territory on this issue. I have taken this into account.

Conclusion

[18] I agree with the Respondent and find that the Commission does not have the jurisdiction to determine whether the Respondent has complied with, or acted in accordance of, the provisions of CHO 55. The legality of CHO 55 is a matter for the Court.

[19] Further, based on the Applicant’s non-compliance with the mandatory preliminary steps in the Disputes Procedure, even if the Commission did have jurisdiction, I find that the Applicant’s application to the Commission is premature. As a result, the application is not properly before the Commission.

[20] Based on the conclusions identified above, the Respondent’s jurisdictional objection is upheld.

[21] The application of the Applicant is dismissed for want of jurisdiction.

COMMISSIONER

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