A secondary school moving its teaching online during Stage 4 restrictions in Victoria did not have a stoppage of work under s 524(1)(c) of the Fair Work Act 2009 (Cth).
See Independent Education Union of Australia v The Peninsula School T/A Peninsula Grammar School FWC 5180.
Stand down under s 524(1)(c)
Employers cannot assume that a pandemic (including COVID-19) provides carte blanche powers to stand down employees under s 524(1)(c).
Moving education online was not a stoppage of work
In Independent Education Union of Australia v The Peninsula School T/A Peninsula Grammar School FWC 5180, Commissioner Bisset considered whether there was a stoppage of work at The Peninsula School due to the imposition of Stage 4 restrictions in Victoria and the concomittant requirement to take learning online.
The Peninsula School argued that its business was to provide onsite education and that taking learning offsite (and online) meant that there was a stoppage of work under s 524(1)(c).
Commissioner Bissett rejected this argument saying that the school’s business was to provide education and this work continued whether learning was provided onsite, or online.
Were business activities sufficiently impaired to justify a stand down?
Business activity does not need cease entirely to trigger s 524(1)(c).
Work activities within the business can be sufficiently impaired to be a stoppage warranting a stand down.
However, the Peninsula School case demonstrates that “sufficient impairment” is still a high bar for an employer to satisfy and the Fair Work Commission will be unlikely to find a stoppage unless the business activity has ceased to the extent that the relevant employees’ responsibilities are no longer required.
The moving of classroom activity online by Peninsula School was not a stoppage of business activity and there was useful work for a classroom assistant. Similarly, the reduction of work in the library due to online learning by Peninsula School did not indicate that library work had stopped and there continued to be useful work for library technicians.
What to do
Even during COVID-19 times, s 524 stand downs are difficult to substantiate for stoppages of work in the absence of business ceasing to trade altogether.
The JobKeeper stand down provisions provide a much easier route (if applicable) and demonstrate why the Australian government has continued to provide for this flexibility in the FW Act.