[2018] FWC 2483[Note: a correction has been issued to this document]
FAIR WORK COMMISSION

DECISION


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

Mr Stephen Ball
v
Thomas Foods International Murray Bridge Pty Ltd
(C2018/914)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 7 MAY 2018

Application to deal with a dispute involving stand down – production impaired by catastrophic fire – laboratory technician stood down – offer of temporary secondment accepted – revised offer of temporary secondment rejected – indefinite stand down without pay – fairness between the parties – revised offer unreasonable – employee entitled to remedy in settlement of dispute - parties to consult on orders

[1] On 22 February 2018 Mr Stephen Ball (Mr Ball or ‘the Applicant’) made an application to the Fair Work Commission (the Commission) under section 526 of the Fair Work Act 2009 (FW Act) to deal with a stand down dispute.

[2] The Respondent to the application is his employer, Thomas Foods International Murray Bridge Pty Ltd (‘Thomas Foods’). This business is part of the broader Thomas Foods Group.

 

[3] I conducted a conference of the parties on 20 March 2018 at which time I conciliated the matter. It did not resolve. Mr Ball requested that the dispute be arbitrated. I considered that the appropriate course.

[4] I issued directions on 20 March 2018 1 and listed the matter for hearing and determination on 13 April 2018.

[5] I conducted a further directions hearing on 4 April 2018 to consider a request by Mr Ball for the production of documents. I made no order for production, but issued Further Directions on matters relevant to Mr Ball’s request. 2

[6] On 10 April 2018 I granted the employer permission under section 526 of the FW Act to be legally represented at the arbitration on the ground that the matter was likely to be more efficiently dealt with if the employer was represented. Mr Ball did not oppose permission. The grant of permission was made on specified conditions. 3

[7] In the lead-up to the arbitration both Mr Ball and Thomas Foods filed materials with the Commission in accordance with my directions.

[8] I arbitrated the matter by determinative conference on 13 and 18 April 2018. Mr Ball was self-represented with the assistance of his father-in-law Mr Kassebaum. Thomas Foods was represented by Mr Foley of Norman Waterhouse Lawyers and Ms Young the Group Human Resources Manager of Thomas Foods.

[9] I heard evidence from Mr Ball and from Ms Young, and received submissions from both parties. I found both Mr Ball and Ms Young to be reliable witnesses. Mr Ball necessarily gave evidence that was, in some respects, more detailed given his involvement in events to which Ms Young was not a party. There are few if any material factual differences between the respective cases. I make findings of fact based on the oral and documentary material before me. Some of the evidence before me was hearsay and opinion. I give less weight to such evidence except where it concerns uncontroverted facts.

[10] At the conclusion of proceedings I reserved my decision.

[11] For the sake of completeness I note that also on 22 February 2018 Mr Ball made a general protections application (not involving dismissal) under section 372 of the FW Act. He claimed to have been subjected to undue influence and coercion in breach of sections 344 and 355. Thomas Foods agreed to participate in a conference on that application. The facts underpinning the section 372 application concern the same events in Mr Ball’s section 526 application. The conciliation conference I conducted on 20 March 2018 was concurrently a conference for the purposes of section 374(1) of the FW Act. As that matter did not resolve, I exercised no further jurisdiction on the section 372 application. I did not consider it appropriate to issue advice in the terms of section 375 of the FW Act.

Background

[12] This case concerns a dispute relating to the circumstances and terms under which a laboratory technician working at Thomas Foods Murray Bridge was stood down by his employer in the aftermath of a catastrophic fire on 3 January 2018 which destroyed the employer’s production facilities at that site.

[13] The employee, Mr Ball, claims that the stand down was both unlawful and unfair. He seeks to have the dispute resolved by the Commission making orders that compensate him for his loss of remuneration since being stood down and orders that he be paid his contractual remuneration for any work that he performs during the period of stand down. In the alternative, he seeks orders that compensate him for his loss of remuneration since being stood down and orders that he be paid a redundancy payment at the minimum level required by the National Employment Standards.

[14] The employer, Thomas Foods, says that Mr Ball’s stand down was both lawful and fair, and that no orders should be made. It says that he is not entitled to a redundancy payment as his position is not redundant.

[15] In arbitrating this matter, the events leading up to and since the stand down are relevant, as well as the terms and conditions under which Mr Ball was employed.

The Facts

[16] Thomas Foods is a significant employer in regional South Australia operating abattoirs and production facilities. It is headquartered at Murray Bridge in South Australia where it operates its largest plant. This includes a slaughterhouse and a processing plant where it employs production workers and maintenance technicians. Located on the same site, but in separate buildings are a laboratory and also administration facilities. Thomas Foods is the town’s major employer, indeed the largest employer in the Murraylands.

[17] Relevant for current purposes, the Thomas Foods Group also operate a smaller meat production facility at Lobethal in the Adelaide Hills where it also employs production workers and maintenance technicians. The Lobethal operations are conducted by a separate wholly-owned entity in the Thomas Foods Group, Lobethal Abattoirs Pty Ltd.

[18] A small laboratory exists at the Lobethal site but it is not accredited by the federal regulator (NATA). The Murray Bridge laboratory is accredited.

[19] Overall, Thomas Foods employed approximately 1,400 employees at Murray Bridge prior to the events of 3 January 2018, made up as approximately 1,300 production workers, 22 quality checkers, 5 laboratory technicians and the remainder administrative and executive staff.

[20] Mr Ball worked as a salaried laboratory technician in the laboratory at Murray Bridge. Although originally employed (according to his letter of appointment) as a food process worker on 17 August 2015 under the T & R Murray Bridge Pty Ltd Food Process Worker Enterprise Agreement 2010 4, he commenced from the outset in the laboratory, not on the production line. After a month’s probation he was promoted to a full time salaried staff position as Laboratory Technician. He commenced in that role from 5 October 2015 and was thereafter employed under the terms of a new letter of offer of 24 September 2015 which he accepted on 26 September.5

[21] The letter of 24 September 2015 constituted Mr Ball’s contract of employment for current purposes. The following extracts from the contract are relevant: 6

[22] Mr Ball reported to the Laboratory Manager or the Plant Manager.

[23] In the two years and three months until January 2018 Mr Ball remained based at Murray Bridge. He did not work from any other location other than very occasional visits to other facilities or training venues for work purposes. In this period there were no material changes to the terms of his contract of employment other than performance reviews and salary increases.

[24] Mr Ball is a young man of 26 years living at Nairne with a wife who works but is pregnant expecting their first child in August 2018. He has a $420,000 home mortgage. He holds a Bachelor Degree in Animal Science. However, he does not hold technical qualifications in meat testing. His skill as a meat tester was developed on the job, from training and observation.

[25] Mr Ball’s core functions as a Laboratory Technician were to test samples of meat from the Murray Bridge and Lobethal production facilities for safety and health, and to prepare reports on the findings. He worked alongside four other laboratory technicians (including his Manager). A further twenty two quality checkers also worked at Murray Bridge but not in the laboratory. Quality checkers perform a different role. To undertake his work, Mr Ball used plant and equipment in the laboratory.

[26] On the evening of Wednesday 3 January 2018 a catastrophic fire engulfed and destroyed the entire meat processing production facilities at Murray Bridge. Emergency services were required at the site for a number of days after the fire. The fire did not spread to the laboratory or the administration buildings. The laboratory remained operational. The fire was accidental. Its cause is discussed later in this decision.

[27] The following day, 4 January, the company sent a memo to all staff which included the following: 7

“Our company has begun making alternate processing arrangements across our group operation and networks to continue to manage our customer requirements. In all this the safety and wellbeing of all our staff is our highest priority. Staff will therefore not be returning to the site until it has been declared completely safe to do so. Our management is working closely with the relevant authorities in that regard and we will be keeping all our staff notified as news comes to hand. The company will continue to stand by and support our staff during this time including providing access to counselling services and looking into possible redeployment arrangements across our national operations where relevant in the short term.”

[28] The fire presented many immediate and profound challenges for the employer. This included making arrangements for as many as possible of its 1,400 employees at Murray Bridge to be relocated to alternate sites and businesses in the Thomas Foods Group in South Australia and interstate.

[29] One such relocation option that was deemed feasible was to the smaller Lobethal abattoir, some 60 kilometres north west of Murray Bridge. To achieve this, in the weeks following the fire the employer established a second shift at Lobethal and made arrangements to bus employees to and from Murray Bridge.

[30] In the week following the fire, Mr Ball remained employed at Murray Bridge. As the Laboratory was untouched by the fire and functioning, and as there was a pipeline of a few days of meat testing in the lab, productive laboratory work could continue. On Friday 5th January, Monday 8th, Tuesday 9th and Wednesday 10th Mr Ball went about his regular duties in the laboratory (on Thursday 4th he along with all other employees were stood down with pay (my emphasis) and on Saturday 6th he offered to work overtime patrolling the site with emergency workers).

[31] On 10 January 2018 Mr Ball’s laboratory manager Mr May informed him that only essential staff were required to remain working at Murray Bridge, that he was not one of those, and that he would need to take annual leave until the situation clarifies.

[32] Hence, Mr Ball was stood down without pay from 11 January 2018.

[33] Mr Ball was anxious about his job and also keen to help the business in the midst of its crisis. He messaged the quality assurance manager (Ms Abbott) indicating that he would be interested in doing quality checking work (including at Lobethal) if there was no laboratory work for him. He was told his name would be added to that list.

[34] Mr Ball took annual leave from his (10.3 days) accrual on Friday 12th, Monday 15th and Tuesday 16th January. He attended work at Murray Bridge on Tuesday 16th, Wednesday 17th and Thursday 18th January but helped out with non-laboratory duties including stocktake in the cold store and removal and transportation of staff lockers to Lobethal.

[35] Mr Ball queried his employment status with the Human Resources Manager (Lailaine Reading) on 18 January. He was told to attend an induction at Lobethal the following day where he would be provided an offer of temporary work or otherwise stood down without pay (my emphasis).

[36] Mr Ball attended the induction at the Lobethal site on Friday 19 January. He was provided a letter dated 19 January 2018:

“Dear Stephen,

Offer of temporary secondment work at the Lobethal Plant - Contract employee

We refer to the fire at the Murray Bridge Plant on Wednesday 3 January 2018. As a result you have been stood down without pay until further notice.

During the period of stand down, Thomas Foods International Murray Bridge has identified work that you could perform at its Lobethal Plant as an alternative to ongoing stand down without pay. The seconded work will be within your skill set.

Should you decide to decline this offer of temporary secondment work at the Lobethal Plant, you will remain on stand down without pay until further notice.

The terms of your employment and your accrued entitlements will remain as per your current employment contract with Thomas Foods International Murray Bridge Pty Ltd. Your ongoing entitlements while working at the Lobethal Plant will also continue accrue in accordance with your current employment contract with Thomas Foods International Murray Bridge Pty Ltd.

You may access your leave entitlements, including your annual leave, banked overtime, or your personal leave bank to cover some, or all, of the current stand down period. Please contact Jenny Robinson on (08) 85329248 if you wish to do so.

We hope to have the Murray Bridge plant up and running again as soon as possible. At that time, you will be asked to return to duties at the Murray Bridge plant.

Further discussions would be held with you at that time and you will be kept up to date over the intervening period.

As discussed, you will commence working at the Lobethal Plant on Monday 22nd January 2018 and shift will be determined by the business needs.

If you agree to the temporary secondment to the Lobethal Plant in the above terms, please sign the section below and return this document to us as soon as possible. Please keep a copy for your records. If you have any questions, please do not hesitate to contact us.

Yours sincerely

Lailaine Reading

HR Manager

I agree to be temporarily seconded to the Lobethal Plant in the above terms

……………………….

Print name

……………………….

Signature and date”

[37] Mr Ball accepted the offer and signed and dated the acceptance 19/1/18.

[38] After the induction and accepting the offer, Mr Ball had a query which resulted in three email exchanges that day with Ms Reading: 8

“From: Stephen Ball

Sent: Friday 19 January 2018 11.09am

To: Lailaine Reading

Subject: Re Temporary Secondment

Hi Lailaine

Could you please confirm that my pay rate and hours will remain as they were at Murray Bridge before I start at Lobethal on Monday. If not I’d like to arrange a meeting to discuss this further. This new role of Mutton boner/slicer is so far outside my skill set as a Lab Technician I would prefer to be in the QA team or back in the Lab at Murray Bridge as it is still operational.

Kind Regards

Stephen Ball

From: Lailaine Reading

Sent: Friday 19 January 2018 4.12 pm

To: Stephen Ball

Subject: Re Temporary Secondment

Hi Stephen

Your pay rate will remain the same, your working hours will be as per the requirements for the AM Mutton Boning Room. This is the role we have for you at present, you signed the secondment letter so we are expecting you for work Monday 22/1/17 at 6am is this still the case?

Kind Regards

Lailaine Reading

HR Manager

From: Stephen Ball

Sent: Friday 19 January 2018 4.54pm

To: Lailaine Reading

Subject: Re Temporary Secondment

Hi Lailaine

Thanks for getting back to me. I realise this is a time of uncertainty for everyone. I have signed the offer of temporary secondment and will be on the site Monday 22/1. The offer states that seconded work will be within my skill set, as I have no experience or skills as a mutton boner or slicer, I expect that this will be a very short term solution and that I can resume my duties as a Laboratory Technician ASAP as I know the lab is still operational. Otherwise, I’ll to give it a go and see if it’s a good fit for me.

Kind Regards

Stephen Ball”

[39] During the day, Mr Ball also phoned the Fair Work Commission and contacted a solicitor to ascertain his rights.

[40] Mr Ball worked at Lobethal as a mutton boner in the week of Monday 22 January to Thursday 1 February (other than being absent on 29 January for a doctor’s visit with his pregnant wife). He received minimal training in the work and by the week’s end was on lighter duties due to difficulty meeting its physical demands.

[41] On Tuesday 30 January Mr Ball was informed that a revised offer of temporary secondment would be made to him. He would remain working at Lobethal in the Mutton Boning Room but be employed under the Lobethal Food Process Worker Employee Collective Agreement 2008, or be stood down without pay. He was told he would need to make this decision by Friday 2 February.

[42] On Wednesday 31 January Mr Ball emailed Lailaine Reading in the following terms: 9

“From: Stephen Ball

Sent: Wednesday 31 January 2018 8.53pm

To: Lailaine Reading

Subject: Re Temporary Secondment

Hi Lailaine,

As we've previously discussed I want to continue working for TFI in a mutually agreed upon position, so long as the position is subject to the continuation of the employment terms in my TFI Murray Bridge contract either in some capacity at Lobethal or as a lab technician in the still operational Lab at Murray Bridge. I agreed to the Temporary Secondment at TFI Lobethal because I was assured my pay and hours would remain the same as they were at Murray Bridge, even if the duties assigned to me are substantially different from those of a Lab Technician. However, now you intend to further alter my employment conditions by transferring me to the Lobethal Food Process Worker Employee Collective Agreement which, if agreed to, results in a major reduction in salary. Having spoken to the Fair Work Ombudsman and a solicitor I have been advised that if I cannot continue employment under the previously agreed upon conditions, then an alternative to your proposed changes is to be made redundant. As I have been a contracted staff member for between 2 and 3 years, would you please confirm, the redundancy conditions of six week’s pay plus two weeks in lieu of notice and the dollar amount to be paid, so I can consider all of my options. I have embraced all of the opportunities presented to me in my time at TFI and would greatly appreciate being able to continue my employment under the conditions signed by both parties in the original Letter of Temporary Secondment.

Kind regards

Stephen Ball”

[43] On 1 February 2018 Mr Ball received a letter from the employer as follows: 10

“PRIVATE AND CONFIDENTIAL

1 February 2018

Dear Stephen

Offer of temporary secondment work at the Lobethal Plant

We refer to the fire at the Murray Bridge Plant on Wednesday 3 January 2018. We also refer to our letter to you shortly thereafter offering you seconded Food Process Worker duties at the Lobethal Plant. We note your signed acceptance to that offer. We also refer to the emails between you and Lailaine Reading since then dated 19 and 31 January 2018.

Initially, you were stood down without pay due to the fire. You will understand this time is difficult for the Company and employees. We have genuinely endeavoured to do the best we can for all our employees in these extremely difficult circumstances.

Unfortunately, QA contract work or technician work cannot be identified for you at either Murray Bridge or Lobethal at this time due to the fire. However, as mentioned in our original letter to you, we have identified Food Process Worker duties for you at Lobethal. As mentioned, that work would be covered by Lobethal Food Process Worker Employee Collective Agreement 2008 (Lobethal Food Process Worker Agreement).

We note in your emails that, although you do not have Food Process Worker experience, you are prepared to give it a go. Our offer of Food Process Worker duties at Lobethal remains at this time.

These duties would be covered by the Lobethal Food Process Worker Agreement. Please advise if you still wish to pursue Food Process Worker duties at Lobethal in these terms.

Should you decide to now decline this offer of temporary secondment work at the Lobethal Plant, you will remain on stand down without pay until further notice. The state of stand down does not constitute a redundancy causing termination of employment. Therefore, it does not attract redundancy pay.

Should you have any queries please contact me on 838967.

Yours sincerely

Lailaine Reading

HR Manager

Thomas Foods International”

[44] Mr Ball was given until close of business the following day, 2 February, to advise whether he agreed to the revised offer of 1 February or be stood down without pay.

[45] Mr Ball felt ill with stress and made an appointment with his general practitioner. He telephoned Ms Reading on the afternoon of 2 February. He advised that the offer was not fair or right; that he had seen a solicitor and would be lodging a complaint with the Fair Work Commission; and that his doctor had that morning certified him unwell and unable to work between 2 and 9 February. He emailed the sick certificate to Ms Reading.

[46] Mr Ball was also certified unfit to work between 9 and 16 February and then again between 19 February and 5 March.

[47] During this period, correspondence was exchanged between solicitors for Mr Ball and solicitors for Thomas Foods. 11 Mr Ball also received a letter dated 20 February 2018 from the Group HR Manager Morna Young:12

“CONFIDENTIAL

20 February 2018

Dear Steven

Murray Bridge stand down

We refer to the fire on 3 January 2018 at the Murray Bridge site. We also refer to the letter from Norman Waterhouse to your legal representatives dated 14 February 2018. We refer to the relevant correspondence predating that letter.

Since 14 February 2018 there has been email correspondence between you and Lailaine Reading. We note that you have provided us with a medical certificate covering 19 February 2018 to 5 March 2018 inclusive. Thank you for the provision of that medical certificate.

Currently you remain on stand down due to the fire. We reiterate our previous confirmation to you that the temporary secondment work in the terms of the 19 January 2018 correspondence has ceased.

In your correspondence since 14 February 2018, you have indicated that you are available to work at Lobethal provided your pay rate and other employment benefits remain the same as those that you were provided at Murray Bridge as a Laboratory Technician. Our 14 February 2018 correspondence to your legal representative confirmed that this work was no longer available. That has not changed.

However, the Company remains willing to discuss with you work options at the Lobethal site. Currently, the only potential work is food processing work. That work, if agreed, would be in the terms of the Lobethal Food Process Worker Employee Collective Agreement 2008 as the alternative to stand down without pay. Therefore, any work at Lobethal at this time would not be at your Murray Bridge rates.

Should you wish to discuss the potential for you to work at Lobethal in the above terms, please contact Lailaine Reading. Currently you remain stood down, but we note your current absence due to a medical condition.

Should you wish to discuss this matter, please contact me.

Yours faithfully,

Morna Young

Group HR Manager”

[48] Mr Ball filed these proceedings (and the related section 372 application) on 22 February.

[49] Although he had secured independent legal advice, Mr Ball lodged proceedings in his own right and represented himself with his father-in-law’s assistance.

[50] As at the dates of hearing (13 and 18 April), Mr Ball remained stood-down without pay. His last day of paid work (as a mutton boner but at his Murray Bridge pay rate) had been 1 February 2018. He was on paid personal leave until 5 March. Although he believed he had exhausted his annual leave and personal leave accruals in the period since the fire, Ms Young’s evidence was that he continues to accrue these entitlements at his Murray Bridge rate of pay. Hence, Ms Young said that Mr Ball had 3 days personal leave and 2 days annual leave in his leave bank as at 13 April.

The Legal Principles

[51] In this matter, the Commission is arbitrating a stand down dispute notified under section 526 of the FW Act. It provides:

[52] Any orders made in dealing with the dispute have legal consequence:

[53] The statutory provisions setting out the circumstances in which a (national system) employer can stand down a (national system) employee are set out in sections 524 and 525:

[54] Stand down provisions in the industrial arena are not exclusively statutory rules. Historically, stand down provisions were inserted in awards made by federal and State industrial relations tribunals on an industry-by-industry basis before parliaments established statutory rules, such as those in the FW Act, to apply more broadly in the economy. With the advent of collective enterprise bargaining, stand down provisions also came to be included in a variety of enterprise agreements.

[55] Hence, the current industrial relations landscape (federal and State) sees stand down provisions generally sourced from statute and from enterprise agreements.

[56] Principles guiding the operation and application of these provisions were summarised by a full bench of the Commission in SSX Services Pty Ltd v The Australian Workers Union: 13

“Importantly, the right to stand down employees under s.524 arises from the effect of the section itself. The right is not dependent on approval of the Commission. However, to the extent that a dispute arises in relation to the exercise of that right, the Commission is empowered by s.526 to deal with that dispute by arbitration. The Commission is required to take into account fairness between the parties concerned and thereby incorporate an overall discretionary factor into the task of determining a dispute over whether the right to stand down is correctly invoked in the circumstances. The parties are bound by s.527 to comply with an order of the Commission dealing with a dispute.”

Consideration

Jurisdictional Pre-requisites

[57] Thomas Foods could only stand down Mr Ball under the authority of section 524 of the FW Act and Mr Ball can only make an application under section 526 if they are covered by these statutory provisions. To be so covered, they respectively need to be a national system employer and a national system employee. There is no dispute that this is so. Mr Ball’s employer is Thomas Foods International Murray Bridge Pty Ltd. It is a constitutional corporation (and thus a national system employer) for the purposes of section 14 of the FW Act.

[58] Mr Ball has standing to notify this dispute and have it determined. He is an employee who has been stood-down or purportedly stood-down under section 524. He has standing under section 526(3)(a).

Characterisation of the Dispute

[59] The decision of the Commission in SSX Services Pty Ltd v The Australian Workers Union noted that the statutory provisions make it important to correctly identify the subject matter of a dispute the subject of arbitration for the purposes of any stand down order. 14 When characterising a dispute regard should be had to the nature of the dispute alleged in the originating application and the factual circumstances as they evolve for the purposes of conciliation and arbitration.15

[60] It is apparent from both Mr Ball’s originating application 16, the written and oral submissions, documents filed by both parties and the issues raised during conciliation and arbitration proceedings that this dispute is of the following nature:

[61] Aside from the dispute being narrowly confined to one employee (despite a larger number of employees having been stood down following the 3 January fire), it involves a broad range of considerations pertaining to Mr Ball including the lawfulness of the stand down, the fairness of the stand down and the current status of his contract of employment.

Stand down provisions pertaining to Mr Ball

[62] At the date of the fire (3 January) Mr Ball was employed as a Laboratory Technician under the terms of the letter of offer of 24 September 2015. This was a salaried position (expressed as “salaried staff (Award-exempt)”) 17 and understood by Mr Ball and by Thomas Foods as such. Although food processing workers and maintenance workers were covered by two separate enterprise agreements operating at the Murray Bridge site18, neither strictly applied to Mr Ball in his work as a salaried Laboratory Technician.

[63] The legal basis relied upon by Thomas Foods to have stood down Mr Ball is the statutory provision in section 524 of the FW Act. In initial correspondence to the Commission representatives for Thomas Foods placed reliance on a stand down provision in the Maintenance Technician Enterprise Agreement 2015. 19 However, in written submissions20 and at the hearing the employer contended that Mr Ball is not covered by an enterprise agreement.

[64] Mr Ball’s evidence was that he was not sure if the Maintenance Technician Enterprise Agreement applied to him as whilst he did not consider himself a maintenance technician from time to time the employer made reference to the agreement when dealing generally about staff matters at the Murray Bridge site. Ms Young’s evidence was that “until recently the Respondent genuinely believed the Applicant’s work was covered” by the agreement “but as part of these proceedings has formed the view that no enterprise agreement covers the Applicant’s employment.” 21

[65] I do not consider that Mr Ball was covered by Maintenance Technician Enterprise Agreement. No reference was made in Mr Ball’s 12-page contract of employment to the operation or coverage of an enterprise agreement. His wages and conditions (including remuneration increases) were not varied by reference to that agreement. The scope of that agreement covers “maintenance and associated tasks”. It is not expressed to cover technicians working in the laboratory nor is there a classification for such employees. The work performed by Mr Ball was skilled and specialist. It was technical and scientific in nature. It was not associated with site or plant maintenance.

[66] In any event, I note that even if Mr Ball was covered by the Maintenance Technician Enterprise Agreement, the stand down provision in the agreement (clause 17) would by virtue of section 524(2)) bear a relationship to the rights and obligations on Thomas Foods set by section 524(1) of the FW Act in that where a clause in an agreement is silent the FW Act applies. 22

[67] I am satisfied that this dispute falls to be determined by reference to the provisions of section 524 of the FW Act, and not the stand down provisions of the Maintenance Technician Enterprise Agreement.

Legality of the Stand down

[68] The standing down of an employee is a significant matter, especially where the employer exercises a right under section 524(3) to do so without pay. 23 It self-evidently has significant impacts on the relevant employee – a denial of some or all income, and an inability to gain the reward and satisfaction from being productively employed. Absent the circumstances permitting a lawful stand down, the denial of wages and perhaps even the denial of productive work would constitute a breach of an employer’s contractual duties. For the employee, the impact of being denied wages is likely to be significant on their living standards, with that significance increasing over time as savings (if any) are used to meet daily living costs. Cascading effects may also impact those who are dependent on that employee’s earnings.

[69] For these reasons, the statutory rules concerning stand down are specific and limited to certain circumstances only. 24 Unless one of the circumstances set out in section 524(1) are made out, Mr Ball’s stand down would not be lawful.

[70] It is agreed that Mr Ball’s stand down was not because of industrial action. Section 524(1)(a) does not apply.

[71] Thomas Foods rely on the provisions of section 524(1)(b) and (c) as the basis for its stand down of Mr Ball. Mr Ball says that neither is made out, and that thereby the stand down is unlawful.

[72] Section 524(1)(b) refers to circumstances in which an employee cannot be usefully employed because of “a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown.”

[73] The 3 January 2018 fire did not damage machinery or equipment in the laboratory. The laboratory was not burnt down. It continued to function after the fire. Mr Ball worked there on 5, 8, 9 and 10 January. It remains the location from which the one remaining technician (Mr Ball’s manager) continues to work. For these reasons Mr Ball submits that Section 524(1)(b) does apply.

[74] I do not agree. Such a construction is a limiting and artificial interpretation of the provision. The evidence before me is that machinery and equipment in the meat processing plant was completely destroyed by the fire. I consider that when machinery or equipment has been destroyed to a point of either disrepair or beyond repair, it has broken down. Further, the evidence is that meat processed from the plant was the most substantial (but not exclusive) source of product tested in the laboratory.

[75] Further, section 524(1)(b) operates in conjunction with its chapeau, which provides 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:…”

[76] The section does not require the employee who “cannot be usefully employed” to be working in the same building where the machinery and plant were destroyed. Although I do not consider geographic co-location to be a necessary precondition for the operation of the subsection, in Mr Ball’s case the meat processing plant is on the same site as the laboratory albeit in different buildings. I consider there to be a sufficient connection between the machinery breakdown and Mr Ball’s work for it to be said that Mr Ball could not be usefully employed once the pipeline of meat to be tested was exhausted due to the destruction of equipment used to produce that product.

[77] I note that section 524(1)(b) applies only “if the employer cannot reasonably be held responsible for the breakdown”. I deal with this below.

[78] Section 524(1)(c) refers to circumstances in which an employee cannot be usefully employed because of “a stoppage of work for any cause for which the employer cannot reasonably be held responsible.”

[79] There is no doubt that work at the Murray Bridge site stopped on the evening of 3 January as a result of the fire. It resumed, on a limited basis, in the week that followed in the laboratory and in the administration block. I am satisfied that there was a stoppage of work pertaining to Mr Ball’s employment – on 4 January, and then again after 10 January when he was advised that there would not be sufficient work for him to keep performing his laboratory duties.

[80] Mr Kassebaum, on behalf of Mr Ball, submitted that even if there was a stoppage of work (or a breakdown of machinery for that matter) both sections 524(1)(b) and 524(1)(c) are not made out because the stoppage (or breakdown) was not for a cause “for which the employer cannot reasonably be held responsible.”

[81] The essence of this submission is as follows. Although the fire was catastrophic the cause was within the control or responsibility of the employer in that it was caused by sparks from welding operations being performed in an offal bin by an employee of Thomas Foods in the meat processing plant. Mr Ball says that Thomas Foods had control and responsibility of the site including for the safe operation of welding activities and compliance with relevant safety and health standards for the operation of such tasks. His submission is that the employer failed to comply with such standards and thereby failed to provide a safe system of work. As such, he submits that it was within the employer’s control and responsibility to prevent the fire. Not having done so, it cannot be said that the stoppage or breakdown on which the stand down is founded were circumstances for which the employer could not reasonably be held responsible.

[82] In support of this submission Mr Kassebaum relied on the common law doctrine of vicarious liability in which an employer is liable for torts committed by an employee when working within their ostensible authority. If, at law, this employer was vicariously liable for the actions of the welder then (it was said) they cannot be excused from responsibility for the purposes of section 524 of the FW Act.

[83] In reply, Thomas Foods said that whilst the fire was caused by sparks from welding operations conducted by an employee, it was accidental and as far as reasonably practicable the workplace was safe. 25 It says that its insurers have accepted that position.26 In any event, the employer submits that the doctrine of vicarious liability has only limited operation as it was “adopted not by way of an exercise in analytical jurisprudence but as a matter of policy.”27

[84] I do not consider it necessary to determine this question because (for reasons set out below) I am able to (and do) determine this dispute having regard to considerations of fairness irrespective of the lawfulness or unlawfulness of the stand down.

[85] However, was I required to determine this question I do not consider that I have adequate evidence to make the findings of fact on which the submissions about employer responsibility and vicarious liability are founded. For example, the evidence of Ms Young about the cause of the fire was of a general nature only, and largely second or third hand hearsay from more senior executives. I was not provided with evidence of what the insurer has or has not said. I was told that certain reports by the authorities on the cause of the fire are incomplete. I was not provided evidence of the company’s insurance policy nor the extent to which the policy covered losses for different causes, or its coverage for employment costs arising from a fire. None of this is surprising or a criticism of either Mr Ball or Thomas Foods; self-evidently, I am not conducting an investigation into the fire, and have no jurisdiction to do so.

[86] I therefore do not adopt the legal conclusions about vicarious liability (or for that matter, statutory liability under health and safety legislation) which Mr Kassebaum invited me to do, other than to say that they were not advanced frivolously and, with a more certain body of evidence, may warrant more specific scrutiny. That scrutiny would necessarily involve the meaning of the phrase “for which the employer cannot reasonably be held responsible” and whether the stoppage or breakdown were “the natural and probable consequence” 28 of the conduct of Thomas Foods.

[87] Although I do not determine the dispute on this basis, my view, on at least the body of evidence before me, is that it was lawful for Thomas Foods to stand down Mr Ball on 4 January and again after 10 January in the wake of the 3 January fire.

Fairness between the Parties

[88] The parliament has, by virtue of section 526 of the FW Act, conferred on the Commission a jurisdiction to hear a dispute concerning stand down and to have that dispute brought before it by an employee who has been or is going to be stood down.

[89] Determining the dispute involves the exercise of discretion, applied according to law and well-established principles governing the settlement of disputes by industrial tribunals. 29 In resolving that dispute, a specific statutory directive is expressed in section 526(4): the Commission “must take into account fairness between the parties concerned.”

[90] Thus, this matter is to be determined by considerations of fairness.

[91] Thomas Foods submitted that a stand down is prima facie fair if it is lawful. Whether conduct can be fair if unlawful, or whether the converse could be true are interesting questions but not necessary to be explored in determining this matter. I will leave the interface between lawfulness and fairness to legal jurisprudence tutorials in law schools and text books. Suffice to say, for the purposes of this matter I consider fairness to be a broader consideration than lawfulness, and not one dependent on making a finding on lawfulness.

[92] Fairness involves what is just and right between the parties having regard to the relevant statutory framework and the facts and circumstances established by evidence.

[93] Importantly, fairness in this statutory context is expressed as fairness “between the parties”. It is not a narrow question of what is fair to Mr Ball or fair to Thomas Foods. It concerns fairness having regard to their dual circumstances and interests. In the case of a stand down this is a point of particular importance. By definition, a stand down (at least one reliant on section 524(1)(b) or (c)) involves a disruption to production not caused by the conduct of the person being stood down nor the conduct of the business employing them. In those circumstances, it would not be unsurprising if a fair outcome involves some or both parties feeling that they are required to bear a burden or sustain a loss that is not theirs or their responsibility. Fairness between the parties, objectively assessed, may not displace some sense of lingering injustice felt by one or both sides.

[94] As in this case, resolving a stand down dispute involves making judgments about how to make the best (in the sense of the fairest) of a bad situation. A catastrophic fire that turns years of business toil and investment to ash and which disrupts much needed employment and household incomes in regional South Australia is clearly of that character.

[95] I also consider it relevant to have regard to the fact that whilst this dispute is purely a matter between an individual employee and his employer, the factual matrix involves decisions the employer made in the wake of the fire and in a relatively short period of time concerning over one thousand employees, many hundreds of which were also displaced, stood down and in many cases relocated. These considerations are relevant to the reasonableness and practicalities of offers made to Mr Ball and the timing of employer responses and requests for information.

[96] Taking into account all of the circumstances and evidence, for the reasons set out below, I have concluded that whilst the initial decision to stand down Mr Ball from 11 January 2018 was fair, the stand down of Mr Ball without pay from 6 March (when he was no longer on personal leave) was unfair as it is of an ongoing and indeterminate nature, and is now excessive. I have also concluded that the terms of alternative employment offered to Mr Ball and agreed on 19 January 2018 were fair, but that the terms of alternative employment that were offered on 1 February 2018 were unfair and that their rejection was reasonable.

[97] Leaving aside the stand down with pay on 4 January (which is not in contest), Thomas Foods initially stood down Mr Ball without pay on 11 January 2018 because, in the wake of the fire, it formed the view that by 10 January there was insufficient work in the Murray Bridge laboratory for Mr Ball to be employed in his usual duties as a laboratory technician. By then, the pipeline of work had dried up because the Murray Bridge processing plant was no longer in production. Of the five laboratory technicians (including the manager) there was only work available for one, and that largely came from meat processed at the smaller-scale Lobethal plant. This was not an unreasonable view to form.

[98] Nor was it unreasonable for Thomas Foods to offer Mr Ball alternative work. Indeed, that was a reasonable course and one which Mr Ball was willing to consider as he not only wanted to help the business in its time of trouble, but also needed to maintain his income. The offer was that Mr Ball work as a mutton boner (with a different but related employer) on the meat production line at Lobethal. This was expressed as “temporary secondment work” in the letter of 19 January 2018.

[99] It was said by the employer in that letter that “the seconded work will be within your skill set”. Although unintended, that was an erroneous statement. Unlike the hundreds of Murray Bridge meat processing workers who were offered work processing meat at Lobethal (where it may be said that the temporary work was within their skill set) an offer to a laboratory technician to work as a mutton boner on a production line is clearly not within their skill set. Mr Ball’s evidence, which I accept, was that he had never worked on the production line (even when first employed) and when he did so at Lobethal had very little training or guidance. Unsurprisingly, within days it took a physical toll on him requiring medical treatment in consequence of which he was prescribed light duties.

[100] Mr Ball accepted the offer of 19 January 2018 but the evidence about that acceptance is instructive. Its terms, its acceptance and communication about it were in writing. I am able to make findings with a degree of confidence based on the documentation and the oral evidence before me.

[101] Firstly, the offer was “temporary” but just how temporary was not expressed.

[102] Secondly, the offer was not an open choice without consequence. It was a take it or leave it offer where the alternative was no work and no income. The employer expressly said: 30

“Should you decide to decline this offer of temporary secondment work at the Lobethal Plant, you will remain on stand down without pay until further notice.”

[103] Thirdly, Mr Ball was hesitant for two reasons: that the work was outside his skill set, and that his pay rate and hours must remain as they were at Murray Bridge. Both issues were the subject of the three email exchanges he had with Ms Reading on 19 January, prior to commencing on 22 January.

[104] With respect to his skill set, Mr Ball advised that he would “give it a go” for a temporary period but wanted to work within his skill set:

“This new role of Mutton boner/slicer is so far outside my skill set as a Lab Technician I would prefer to be in the QA team or back in the Lab at Murray Bridge as it is still operational.” 31

“The offer states that seconded work will be within my skill set, as I have no experience or skills as a mutton boner or slicer, I expect that this will be a very short term solution and that I can resume my duties as a Laboratory Technician ASAP as I know the lab is still operational. Otherwise, I’ll to give it a go and see if it’s a good fit for me.” 32

[105] With respect to his pay rate, the letter of offer by the employer was very specific:

“The terms of your employment and your accrued entitlements will remain as per your current employment contract with Thomas Foods International Murray Bridge Pty Ltd. Your ongoing entitlements while working at the Lobethal Plant will also continue accrue in accordance with your current employment contract with Thomas Foods International Murray Bridge Pty Ltd.” 33 (my emphasis)

[106] Taking up the invitation in the offer to contact Ms Reading with any questions, Mr Ball sought to make it doubly sure that he was to be paid his Murray Bridge pay rate if he was to do mutton boning work at Lobethal:

“Could you please confirm that my pay rate and hours will remain as they were at Murray Bridge before I start at Lobethal on Monday. If not I’d like to arrange a meeting to discuss this further.”

[107] That same day, he received this assurance from Ms Reading:

“Your pay rate will remain the same, your working hours will be as per the requirements for the AM Mutton Boning Room.” 34 (my emphasis)

[108] I consider that both parties were open, transparent and (aside from the inaccurate statement about the work being within his skill set) reasonable to the other in negotiating the terms of the letter of offer of 19 January, the context in which it was made and the basis of its acceptance.

[109] However, the conduct of Thomas Foods on 30 and 31 January and 1 February materially altered the positon vis-à-vis Mr Ball that had been agreed and was operating during the previous two weeks. The letter of 1 February 2018 advised Mr Ball that he would be offered work as a mutton boner at Lobethal on different terms – under the Lobethal Food Process Worker Employee Collective Agreement 2008. It was again presented as a take it or leave it option – accept these terms or you will again be stood down without pay. It advised that quality assurance work or technician work could not be found for him.

[110] This revised offer of “temporary secondment” was sent on 1 February despite Mr Ball the previous day informing Ms Reading that such terms would not be acceptable and were contrary to the agreement of 19 January: 35

“I want to continue working for TFI in a mutually agreed upon position, so long as the position is subject to the continuation of the employment terms in my TFI Murray Bridge contract either in some capacity at Lobethal or as a lab technician in the still operational Lab at Murray Bridge. I agreed to the Temporary Secondment at TFI Lobethal because I was assured my pay and hours would remain the same as they were at Murray Bridge, even if the duties assigned to me are substantially different from those of a Lab Technician. However, now you intend to further alter my employment conditions by transferring me to the Lobethal Food Process Worker Employee Collective Agreement which, if agreed to, results in a major reduction in salary.”

[111] I do not need to determine whether it was lawful (in the sense of not breaching or repudiating Mr Ball’s contract of employment) for Thomas Foods to unilaterally bring the agreement of 19 January to an end. I have grave doubts whether that was so, given principles of repudiatory breach of contract. 36 I need not form a concluded view on that question because I am determining this issue by reference to fairness between the parties.

[112] I consider the conduct of Thomas Foods in unilaterally ending the agreed terms of temporary secondment of 19 January; in offering a temporary secondment doing the same work but on materially different terms; and presenting that offer to him as the only alternative to stand down without pay to have been unfair and unreasonable on each ground.

[113] The evidence before me is that Mr Ball would have incurred a reduction in his contracted rate of pay in the order of 35% (depending on what shifts were worked) if he had accepted work on the terms of the Lobethal Food Process Worker Employee Collective Agreement 2008. Across a year, this would equate to approximately a $25,000 reduction in remuneration.

[114] It was not unreasonable for Mr Ball to reject the offer of 1 February. He had a contractual entitlement to his substantive rate of pay. There are no provisions in his contract for remuneration being paid other than at his substantive rate of pay. For example, even if he were directed not to report for duties (in the context of performance or conduct considerations), his contract contemplated payment of his salary. 37

[115] In practical terms, Mr Ball was being asked to perform the same work that he was ill-suited for but which he had agreed two weeks earlier but with a 35% reduction in pay. This level of reduction was substantial and material. In circumstances where he had made it clear that he would only work as a mutton boner if he remained on the rate of pay applicable to his substantive position, and given that he had received an undertaking to that effect on 19 January, he was acting reasonably in rejecting the offer.

[116] Thomas Foods submits that between 19 January and 1 February it had tried but been unable to find work for Mr Ball within his skill set. I accept Ms Young’s evidence 38 that it had “hoped” to do so, but that work was unavailable. Mr Ball did not hold qualifications enabling him to work as a quality assurance employee. However, the absence of sufficient work being available as a laboratory technician did not make the terms offered reasonable. Assessing reasonableness involves a consideration of the terms of an offer not just the availability of work being offered.

[117] Thomas Foods submits that the 19 January offer was expressed to be a “temporary secondment” and a new offer of 1 February was evidence that the 19 January arrangement was only temporary. Whether temporary or not, the fact that such an arrangement had been made between the parties only two weeks earlier for the performance of the same work at the same temporary location is relevant to the reasonableness of the 1 February offer and the reasonableness of its rejection. Whether the company “genuinely believed and hoped” on 19 January (as Ms Young attested 39) that it could soon find temporary laboratory technician work for Mr Ball at Lobethal is not the point. Having been unable to do so, on 1 February 2018 it chose to offer the terms it did to Mr Ball; and those terms were unreasonable.

[118] The only conclusion that can be reasonably reached on the evidence is that because Mr Ball was, by 1 February 2018, less likely to be found work as a technician then he was thereby likely to have to work (if he was going to work) for a further indeterminate period as a mutton boner and that in those circumstances the company did not want to keep paying him at his technician’s rate of pay even though it had done so immediately prior.

[119] In the circumstances, this was an unreasonable view by the employer. Whilst I accept that in the ordinary course of business an employee should be remunerated for the value of work being performed (that is, mutton boning work at mutton boning rate of pay) this was no ordinary situation. Here the company had a skilled employee with a contract of employment at a contracted rate of pay who had been open and transparent, and who was reluctantly giving a go to lesser and unsuited lower skilled work but on the express condition that he be paid the rate of his substantive position.

[120] By agreeing to perform lesser and ill-suited work Mr Ball was meeting the company half way in the difficult circumstances it found itself. It was reasonable for him to expect the company to meet him half way by maintaining his contracted rate of pay and the terms they had negotiated for doing that alternative work a fortnight earlier.

[121] Also relevant to the reasonableness of the conduct of the parties is that the alternative presented to Mr Ball was stand down without pay for an unspecified and indeterminate time which was likely to be lengthy. The 1 February offer was that the stand down be “until further notice” 40. The evidence before me was that both Thomas Foods and Mr Ball understood this to mean, unless circumstances changed (which was not forseeable), until the Murray Bridge site was rebuilt and normal production levels resumed. This was estimated to be in the order of 18 months to two years.

[122] Mr Kassebaum, on behalf of Mr Ball, submitted that a stand down is unlawful unless it is for a short and specified duration. He referred me to the decision of the Commission in TCFUA v Tuftmaster Carpets Pty Ltd where it was said (in the context of a stand down clause in an agreement invoked after a fire): 41

“However, it is clear that the clause does not permit the indefinite stand down of employees. Stand downs are by their nature temporary. In the Award Simplification case the Australian Industrial Relations Commission reviewed the 1994 Award (Print R1336 at 11) and refused to subject the stand down provisions to the facilitative clauses in the simplified award and said “the concept and rationale for a stand down provision, in my opinion, is to address a specific situation and/or event. It should not have a continuing application or life. Therefore, flexibility in its application does not or should not arise.”

[123] In response, Thomas Foods points to a decision of the Commission in Stonestreet’s Coaches 42 in which it was said, in the context of a clause in an agreement concerning stand down pending disciplinary investigations, that undertakings were not required to limit the duration of a stand down.

[124] Each of the aforementioned decisions are distinguishable on the facts, particularly Stonestreet. It concerned undertakings in the context of statutory criteria applying to the approval of an enterprise agreement. Mr Ball’s matter bears no relationship to a disciplinary investigation. It concerns an indeterminate period of stand down arising wholly from external events.

[125] As noted above, I am determining fairness between the parties, not lawfulness. Whether or not, as a matter of law, section 524 of the FW Act can be invoked for an unspecified and indeterminate period, I consider it unreasonable and unfair for Mr Ball to have remained in a state of stand down without pay after the expiry of the period of his personal leave (which ended on 5 March) and since. I take into account that the fire was major, indeed catastrophic. I take into account that the employer was managing an extreme human resource challenge that involved the interests of approximately a thousand employees. I take into account that the employer was, at the same time, dealing with insurers, government authorities, customers, the media and local communities.

[126] Nonetheless, it was apparent at least by 5 March 2018 when Mr Ball’s personal leave ceased, that work as a laboratory technician was unlikely to be made available to Mr Ball given the loss of production, and that that loss of production was going to be for a prolonged period, probably until the Murray Bridge site was rebuilt. Even though it remains challenging, after “the first month or two” the employer had a clearer view of what lay before it. 43 There was nothing reasonably foreseeable in early March or which has happened since which has made it more or less likely that Mr Ball’s stand down will come to an end in a defined let alone reasonable period of time.

[127] In these circumstances, I consider it unfair for Mr Ball to be continuing to be stood down without pay some four months after the fire with no sign or prospect that the stand down will be brought to an end except when the site is rebuilt and brought into production in (at the very least) some 18 months to two years’ time.

Conclusion

[128] For the above reasons and taking into account all of the circumstances, whilst the initial decision to stand down Mr Ball from 11 January 2018 was fair, the stand down of Mr Ball without pay from 6 March (when he was no longer on personal leave) was unfair as it is of an ongoing and indeterminate nature, and is now excessive. I have also concluded that the terms of alternative employment offered to Mr Ball and agreed on 19 January 2018 were fair, but that the terms of alternative employment that were offered on 1 February 2018 were unfair and that their rejection was reasonable.

[129] It would have been reasonable between the parties for a person in Mr Ball’s position to have been stood down for two months after a fire of this magnitude to allow the employer to achieve a sufficient level of clarity about the implications of the fire for its business and for its employment of Mr Ball, to consider the prospects (if any) of it being able to make work available in a reasonable period of time to Mr Ball as a laboratory technician and to consider the prospects (if any) of it being able to make alternative work available in a reasonable period of time to Mr Ball, and negotiating reasonable terms on those matters with him.

[130] Beyond a period of two months, I consider the stand down without pay of Mr Ball to have neither been fair nor reasonable between the parties.

Remedy

[131] Although not expressed quite in these terms, 44 the effect of Mr Ball’s submissions is that he seeks to have this dispute resolved by one of the following:

[132] The first of these options I do not consider appropriate. I have found that Mr Ball could not have been (and still cannot be) usefully employed in the Murray Bridge laboratory once the pipeline of meat to be tested was exhausted due to the destruction of equipment used to produce that product. That position, on the evidence before me, remains unchanged.

[133] I do not consider the third of these options to be appropriate. It would be unreasonable to require Thomas Foods to be compelled to pay Mr Ball for the entire period of his stand down, given that it is indeterminate, and likely to be for a prolonged period of time. Section 524(3) of the FW Act provides an employer a discretion to stand down an employee with or without pay. I have concluded, in these circumstances, that a stand down without pay for a period of two months was fair and reasonable, but not beyond.

[134] I consider that the second and fourth options provide an appropriate basis for settlement of this dispute.

[135] In respect of the fourth option, Thomas Foods submits that Mr Ball’s substantive position remains but that he is simply stood down without pay. Hence it is submitted that his position is not redundant and Mr Ball has no entitlement to a redundancy payment. This contention has been contested by Mr Ball, including by lawyers who were acting for him. 45

[136] I do not need to determine, as a matter of law, whether a redundancy has occurred to order that an appropriate payment to Mr Ball should be made in settlement of the dispute. While the employer submits that a contract of employment is continuing (against which entitlements are still being accrued), and while I accept this as a fact, I am of the view that the circumstances are at least akin to a redundancy in that whereas prior to 3 January 2018 there was sufficient work for five persons to be employed in the laboratory, there is now only sufficient work for one person, and the employer has not selected that person to be Mr Ball. The employer’s evidence on this is clear. 46 Further, the evidence before me is that there is no reasonable likelihood of that position changing in the immediate future.47

[137] I am prepared to make an order that settles the dispute by requiring Thomas Foods to make an appropriate payment to Mr Ball. That payment should be equivalent to what he would have received had he been made redundant once his personal leave ceased on 6 March 2018 when his stand down without pay was no longer fair and reasonable, and which is approximately two months after the fire. I am prepared to make this order because a sum equivalent to a redundancy payment (with the additional components mentioned below) is a fair and reasonable settlement.

[138] That order of a monetary sum would be comprised of:

[139] A monetary order of this nature would necessarily be predicated on both parties agreeing to the mutual termination of Mr Ball’s employment (under clause 24 of his contract), or by the employer terminating Mr Ball’s employment (including on the ground of redundancy) or Mr Ball resigning from his employment. In other words, it would be a monetary payment consequential on a parting of the ways.

[140] Given the significance to both Mr Ball and to Thomas Foods should that course be adopted, I am prepared to provide one final opportunity to the parties, in light of this decision, to consider whether a resolution in terms of option 2 can be negotiated between themselves (that is, Mr Ball being employed performing alternate duties on agreed terms and at an agreed location but being paid the remuneration applicable to his substantive position).

[141] I will give the parties seven (7) days from the date of this decision to consider that option and to discuss it, or reach such other resolution amongst themselves. I will relist this matter shortly thereafter to be informed of its status.

[142] Should the matter not be otherwise resolved, I will thereafter issue an order consistent with this decision in settlement of the dispute.

[143] Finally, I emphasise that this decision is based solely on the circumstances surrounding Mr Ball’s employment with Thomas Foods, and the evidence pertaining to that before me. I am not deciding whether stand downs by Thomas Foods in the wake of the 3 January 2018 fire at Murray Bridge of any other employees was lawful, reasonable or fair. Self-evidently individual considerations apply to different persons and different categories of employees and the circumstances in which they have come to be employed, relocated or stood down by the employer.

DEPUTY PRESIDENT

Appearances:

S. Ball, on his own behalf, and J. Kassebaum, for the Applicant

M. Foley, with permission, and M. Young, for Thomas Foods International Murray Bridge Pty Ltd

Hearing details:

2018.

Adelaide.

13 and 18 April.

Printed by authority of the Commonwealth Government Printer

<PR606787>

 1   Directions, Deputy President Anderson, 20 March 2018

 2   Further Directions, Deputy President Anderson, 4 April 2018

 3   Decision, Deputy President Anderson, 10 April 2018 [2018] FWC 2046

 4   Letter of Offer 13.8.2015 A20

 5   Letter of Offer 24.9.2015and Acceptance of Offer 26.9.15 A1

 6   A1; MY1

 7   R2

 8   A8

 9   A9

 10   MY4

 11   A11, A12, A13

 12   A14

 13   [2015] FWCFB 3964 at [17], 1 July 2015

 14   Ibid

 15   Ibid at [18]

 16   F13 22 February 2018

 17   A1 page 1

 18   T & R Murray Bridge Pty Ltd Food Process Worker Enterprise Agreement 2010; Murray Bridge Maintenance Technician Enterprise Agreement 2015 as per Exhibit MY2

 19   R1, Letter 5 March 2018

 20   Respondent’s Outline of Position 11 April 2018 paragraph 7

 21   R3 Statement of Morna Young paragraph 10

 22   See AFAP v Australian Helicopters Pty Ltd [2013] FWC 7863 at [9]; see also Explanatory Memorandum to the Fair Work Bill 2008 paragraph 2080: “An enterprise agreement or a contract of employment may provide for stand down in a wider range of circumstances than as provided in this Part (subclause 524(2)). If an enterprise agreement or a contract of employment does not provide for stand down, or authorises stand down in more limited circumstances, or does not deal with one of the specified circumstances in subclause 524(1), then the provisions for stand down set out in this Part will apply.”

 23   Food Preservers Union of Australia and All States Ready Foods and Others (1976) 182 CAR 391

 24   Re Distilleries Award 1976 (1976) 180 CAR 786 at 787

 25   R3 Statement of Morna Young paragraphs 6 and 13-17

 26   Ibid paragraph 67

 27   Citing the High Court of Australia in Hollis v Vabu Pty Llimited [2001] HCA 44 at [34]

 28   See for example the Commonwealth Industrial Court in Vehicle Builders Employees’ Federation of Australia v Ford Motor Co. of Australia Pty Ltd (1962) 3 FLR 198 at 200; Food Preservers Union v McCains Australia Pty Ltd (1977) 19 AILR 337; and Australian Workers Union v Electrolux Home Products Pty Ltd AIRC PR940929 at [72], 21 November 2003

 29   For example, the High Court of Australia in Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [19]: “’Discretion’ is a notion that "signifies a number of different legal concepts". In general terms, it refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result." Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.”

 30   A4 paragraph 3

 31   A8 Email 19 January 2018 11.09am

 32   A8 Email 19 January 2018 4.54pm

 33   A4 paragraph 4

 34   A8 Email 19 January 2018 4.12pm

 35   A9 Email 31 January 2018 8.53pm

 36   See for example the High Court of Australia in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) CLR 115 and a Full Bench of the Fair Work Commission in City of Sydney RSL v Balgowan [2018] FWCFB 5 at [18]: “Relevantly, for present purposes, repudiation may exist where an employer reduces the wages of an employee without the employee’s consent or where there is a serious non-consensual intrusion on the nature of the employee’s status and responsibilities in a way which is not permitted by the contract. Similarly, if an employer seeks to bring about a change in the employee’s duties or place of work which is not within the scope of the express or implied terms of the contract of employment, the conduct may evince an intention to no longer be bound by those terms. Therefore, in these circumstances if an employee does not agree to the change, which if agreed would amount to a variation of the contract, the employee may claim to have been constructively dismissed.”

 37   A1; MY1: Clause 24 “Termination” paragraph 4: “The Company may direct you not to report for duties for a period of time, subject to you still receiving your salary throughout that period.”

 38   R3 Statement of Morna Young paragraphs 30 and 31

 39   Ibid paragraph 30

 40   MY4

 41   [2011] FWA 1891 at [69]

 42   Stonestreet’s Coaches Pty Ltd Enterprise Agreement 2014 [2014] FWCA 7039

 43   R3 Statement of Morna Young paragraphs 21 and 22

 44   Mr Ball’s originating application at 3.1 sought redundancy payments and at 3.2 to be “usefully employed”; Mr Ball’s written material A18 page 3 “ultimate goal is to be employed by TFI under the same conditions in my contract”

 45   A13

 46   R3 Statement of Morna Young paragraphs 44 to 47 and 53 to 60

 47   Ibid paragraphs 53, 54 and 70

 48   The evidence suggests that Mr Ball was on paid personal leave only until 5 March (MY5)