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[2020] FWC 824
respondent. Application dismissed. Commission found the stand down of Mr Dimitrovski was a bona fide, reasonable and lawful disciplinary action carried out under the contract/enterprise agreement, not a lock...
The AMWU applied to the Fair Work Commission alleging Boeing had 'locked out' an AMWU delegate by standing him down on full pay pending disciplinary proceedings. The Commission found the stand down was a bona fide, lawful disciplinary measure taken to protect the investigation and other employees, and that because it was carried out under the employment contract/enterprise agreement it did not prevent performance of work 'under the contract' and therefore was not a 'lock out' or industrial action. The application under s.418 was dismissed.
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1,782 words · generated 21/06/2026
The AMWU applied to the Fair Work Commission under s.418 of the Fair Work Act 2009 seeking an order that alleged unprotected industrial action stop. The application arose after Boeing stood down, on full pay, an employee and AMWU delegate and OHS representative, Mr Tim Dimitrovski, on 4 February 2020 pending a disciplinary investigation into multiple allegations of misconduct (paras [1]–[11]). The AMWU characterised the stand down as a lock out, that is industrial action by an employer under s.19(1)(d) read with s.19(3), and sought an order preventing the lock out occurring or continuing (paras [2], [13], [16]).
Boeing resisted, saying the stand down was a disciplinary measure, lawful and reasonable, not industrial action. The matter was heard promptly in accordance with s.420, and Deputy President Mansini dismissed the AMWU's application on the evening of 6 February 2020. Written reasons were provided on 17 February 2020 (paras [3]–[5]).
Key factual points: Mr Dimitrovski had earlier made complaints about another employee; those complaints were investigated and unsubstantiated; Boeing then advanced allegations against Mr Dimitrovski of potential serious misconduct (paras [8], [11]). On 4 February he was given an allegations letter and stood down on full pay with instructions to be available for further meetings (para [9]). Boeing's Director who made the decision, Mr Sorrenson, gave evidence explaining the reasons: preserve investigation integrity, protect other employees, allow fair process and minimise risk of confidentiality breaches (para [11]).
Statutory frame: s.19(3) defines a lock out as where an employer prevents employees from performing work under their contracts without terminating those contracts. Part 3 of the Act governs protected and unprotected industrial action; s.418 requires the Commission to order that industrial action that is not protected stop where it is happening, threatened, or being organised (paras [14]–[16]).
The Commission's legal task was to decide whether Boeing's stand down amounted to a lock out within s.19(3) and thereby industrial action. The AMWU did not contend any stand down on full pay is automatically a lock out; it accepted that bona fide disciplinary stand downs would not be (para [29]). The contest was therefore whether Boeing's stated disciplinary motive was genuine or a pretext to prevent Mr Dimitrovski from exercising union/OHS functions (paras [17]–[21], [32]).
Deputy President Mansini found the decisive factual and legal answers on two linked bases:
Contractual basis and statutory test: If the stand down is carried out in accordance with or under the contract of employment, then the employer is not preventing the employee from performing work under the contract. Construing s.19(3) to capture such an in-contract stand down would produce an absurd result. That constructional point weighed against finding a lock out where the stand down sits within contractual authority (paras [30]–[31]).
Credibility and bona fides: The Commission accepted Mr Sorrenson's evidence that the stand down was taken for legitimate disciplinary reasons, to allow a fair investigation, protect other employees and guard investigation integrity, and that the AMWU did not establish an ulterior motive. Mr Dimitrovski was on full pay while stood down, which supported the view this was a precautionary disciplinary measure rather than a punitive exclusion (paras [11], [33]).
Because the stand down was lawful and bona fide disciplinary action carried out under the contract, it did not satisfy the s.19(3) definition of lock out; therefore the s.418 remedy was not available and the AMWU's application failed (paras [26], [31]–[35]).
The Commission also observed it did not need to decide the question of 'industrial character' (a concept discussed in prior authorities and referenced in the s.19 note) because the primary factual finding rendered that issue moot (para [34]).
Before this decision, the statutory definitions in s.19 and remedial provisions in Part 3 already established the framework for distinguishing industrial action from other employment-related actions. Prior authorities, referred to in the hearing, such as CFMEU v BHP Coal and Adams, were discussed by the parties in arguments about what constitutes industrial character (para [23]). The judgment did not overrule or significantly alter the statutory text. Instead, it applied straightforward statutory construction and fact-finding to the circumstances where an employer directs a stand down on full pay pending investigation.
After this decision, the practical rule affirmed by the Commission is: where a stand down on full pay is genuinely taken as part of a disciplinary process under the contract/enterprise agreement, it will not be a lock out or industrial action under s.19(3). The decision emphasises the importance of (a) whether the action is taken 'under the contract', and (b) the bona fides and reasonableness of the employer's motive. The determination does not close the door on other stand downs being treated as lock outs where the employer's conduct is not contractual, not bona fide, or amounts to preventing work under the contract.
In short, the decision applies existing principles, contractual basis and bona fide motive, rather than creating new law.
Paragraph [27] (statutory definition): "An employer locks out employees ... if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts."
Paragraph [30]: "If a disciplinary process involving a direction to stand down from employment on full pay is carried out in accordance with, or under, the contract of employment then it follows that there is no prevention of work under the contract."
Paragraph [33]: "I am satisfied that Mr Sorrenson's decision to stand down Mr Dimitrovski was based on his legitimate concerns ... The ulterior purpose put to Mr Sorrenson was not established in evidence and I found Mr Sorrenson to be a credible witness."
Paragraph [34]: "In light of this finding, there is no need to determine the relevance or presence of any industrial character."
This decision is most directly relevant where:
Under these circumstances, an applicant alleging a lock out must do more than show the practical effect of a stand down; they must adduce evidence undermining the employer's bona fides and showing the stand down was not carried out under contractual authority or was otherwise a means of preventing work under the contract. If the employer's decision-maker gives credible, consistent evidence of legitimate reasons and the employee remains on full pay, that will materially weaken a lock out claim (paras [29]–[33]).
Conversely, if the employer cannot point to contractual authority or the employer's actions are inconsistent with disciplinary norms (e.g. selective treatment without explanation, non-payment while stood down, or other indicia of exclusion), the stand down may be vulnerable to characterization as a lock out.
The judgment itself cites earlier authorities (e.g. CFMEU v BHP Coal and Adams) as part of argument about 'industrial character' (para [23]) and cites Avenia for implied contractual terms (para [31]). The decision is a Commission determination applying existing statutory definitions and fact-specific credibility findings. The written reasons do not record any subsequent appellate treatment of this decision, and the text does not rely on later decisions. Therefore, within the confines of this judgment, there is no material in the decision about how later courts have treated it. Practitioners should search subsequent cases and Tribunal decisions for later treatment or appeals to see whether this Commission reasoning has been affirmed, distinguished or criticised.
Contractual scope and express terms: In this case no contract was produced and the Commission accepted an implied contractual right to stand down as reasonable. Where an employer lacks an express contractual right to stand down, or where enterprise agreements expressly regulate stand downs or delegate functions, further litigation may be required to clarify how express contractual terms interact with s.19(3). The Commission noted implication as possible but did not fully elaborate contractual limits (paras [30]–[31]).
The borderline with s.19(2)(b): Boeing argued as alternative that the stand down could fall within s.19(2)(b) (action authorised or agreed to by the employer), potentially excluding it from 'industrial action'. The Commission did not decide that alternative, resolving the matter on bona fides (para [22], [34]). Future cases may need to clarify whether and when a disciplinary direction can be treated as 'authorised or agreed to' for the purposes of s.19(2)(b).
Role of 'industrial character' in contested cases: The parties debated authorities about 'industrial character' (paras [23], [34]). Although the Commission found that question moot here, other cases where bona fides are disputed may require fuller engagement with the concept and its limits.
Multi-employee scenarios: s.19(3) uses 'employees' (plural) but the Commission treated the singular/plural as not significant (para [28]). Where an employer stands down multiple employees simultaneously, different considerations may apply as to whether the collective effect amounts to a lock out.
Evidential standards and comparative treatment: The AMWU relied in part on comparative treatment (the way Boeing treated Mr Judd) to infer ulterior motive (paras [19]–[21]). The decision illustrates that such comparative inferences depend on the surrounding corroborative evidence and credibility findings. The boundary of when comparative facts will suffice to infer an ulterior motive remains fact-sensitive.
Practical takeaway: Employers who wish to stand employees down pending investigation should document and be ready to justify the bona fides and contractual basis for the decision, and pay attention to process and payment while stood down; employees and unions alleging a lock out must adduce cogent evidence undermining the employer's stated reasons to succeed under s.418.
s.418 - Industrial action
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union
Boeing Aerostructures Australia Pty Ltd t/a Boeing Aerostructures Australia
Alleged industrial action at Boeing Aerostructures Australia Pty Ltd - Port Melbourne site.
[1] At 4.05pm on Tuesday 4 February 2020, an application was made by the AMWU under s.418 of the Fair Work Act 2009 (Cth) (the Act). The application sought an order from the Commission that unprotected industrial action must stop and not occur.
[2] The application was made by the AMWU as a person directly affected by the alleged industrial action. It was precipitated by Boeing's decision to suspend an employee on full pay pending a disciplinary investigation into several allegations of misconduct. The proposed order was directed at Boeing, sought in the following terms:
"The industrial action the subject of the Boeing Notice to Tim Dimitrovski dated 31 January 2020, being unprotected industrial action, stop, not occur or not be organised from the date of this order for a period of one month."
[3] Section 420(1) of the Act requires that as far as practicable, an application under s.418 be determined within 2 days after it is made. The matter was listed for hearing at 5pm on Thursday 6 February 2020.
[4] Boeing was represented by Mr Patrick Wheelahan of Counsel with the Commission's permission having regard to the factors at s.596 of the Act. The AMWU did not object.
[5] On the evening of 6 February 2020, after considering the evidence, submissions and materials before the Commission, I determined to dismiss the application. I indicated to the parties that I would provide written reasons in due course. This decision sets out those reasons.
[6] The AMWU and Boeing are covered by the Boeing Aerostructures Australia Pty Ltd (Port Melbourne) Enterprise Agreement 2018 (the Enterprise Agreement). The nominal expiry date of the Agreement is 30 June 2021.
[7] The single employee with which the application is concerned is a Mr Tim Dimitrovski. Mr Dimitrovski is employed as an Aerospace Tradesperson for Boeing on its 787 Inboard Flap team at Boeing's Port Melbourne site. During the course of his employment, Mr Dimitrovski has been elected by his work group as an occupational health and safety representative (OHSR), to represent his work group in health and safety matters at work. He is also an AMWU Delegate which, according to Boeing, is a role he is permitted to perform during work time and includes assisting union members in his work area with issues, for example matters related to the Enterprise Agreement.
[8] The relevant background to the allegations made against Mr Dimitrovski is, in summary:
In October 2019, Mr Dimitrovski made 6 complaints alleging inappropriate behaviour by another employee, Mr Judd;
Mr Dimitrovski's complaints were investigated by Boeing, the outcome of which was that all 6 allegations were unsubstantiated; and
Arising from the investigation into Mr Dimitrovski's complaints, Mr Dimitrovski was alleged to have engaged in conduct which may constitute serious misconduct and may be in breach of Boeing's workplace policies. Those allegations include:
failing to comply with directions to maintain confidentiality;
providing false and misleading information to the investigator; and
engaging in various acts of bullying and harassment towards the employee concerned.
[9] On 30 January 2020, Mr Dimitrovski was requested to attend a meeting with Mr Michael Sorrenson (Director of Supply Chain Management & Operations, Boeing) about the allegations made against him. To facilitate the attendance of a support person, the meeting took place on the morning of 4 February 2020. During that meeting, Mr Dimitrovski was informed of Mr Sorrenson's decision to suspend him pending the outcome of a disciplinary investigation into his alleged misconduct. He was handed an allegations letter which detailed 11 separate allegations and said:
In light of the nature of the above allegations, BAA is suspending you from work effective immediately on full pay. Although you are not required to attend work, you are directed to make yourself available to participate in further meetings scheduled by BAA."
[10] The letter invited a response to the allegations and foreshadowed that, if Boeing is not satisfied with the response, Mr Dimitrovski may be subject to disciplinary action up to and including termination of his employment.
[11] At the hearing, Mr Sorrenson gave evidence. He described the rationale for his decision to "stand down" Mr Dimitrovski as:
To ensure a fair process for Mr Dimitrovski by providing him the time to respond and participate in the process;
To ensure a safe workplace for other employees concerned with this particular investigation; and
Given the nature of the allegations against Mr Dimitrovski, to protect against the potential for manipulation of witnesses and to minimise the potential for confidentiality breaches.
[12] Mr Sorrenson also gave evidence that, after considering human resources' advice following the outcome of the investigation into Mr Judd, he had decided to grant Mr Judd's request to return to the work area. On the same day, Mr Sorrenson decided to stand down Mr Dimitrovski. However he denied that Mr Dimitrovski was stood down to prevent him from exercising his functions as an AMWU Delegate or as an OHSR. Further, Mr Sorrenson did not accept that the decision to stand down Mr Dimitrovski was inconsistent with Boeing's approach to discipline of other employees including Mr Judd.
[13] The AMWU contended that Mr Dimitrovski had been "locked out" and that this was not protected industrial action within the meaning of the Act. The Respondent strongly opposed on the basis that the stand down of Mr Dimitrovski was disciplinary action and not "industrial action" within the meaning of s.19 of the Act therefore could not result in an order of the Commission under s.418.
"418 FWC must order that industrial action by employees or employers stop etc.
(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:
the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.
Note: For interim orders, see section 420.
(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;
(ii) an organisation of which a person referred to in subparagraph (i) is a member.
(3) In making the order, the FWC does not have to specify the particular industrial action.
(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:
(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or
(b) which has not ended before the beginning of that stop period; or
the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot."
[16] "Industrial action" is defined in the Act as:
(1) Industrial action means action of any of the following kinds:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees.
Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.
(2) However, industrial action does not include the following:
(a) action by employees that is authorised or agreed to by the employer of the employees;
(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.
Note: In this section, employee and employer have their ordinary meanings (see section 11)."
[17] The AMWU contended that the Commission is required to determine whether the AMWU has established a positive finding going to two issues, described as whether:
Boeing made a decision to deny Mr Dimitrovski work to prevent him from performing his union and safety roles; and
Boeing implemented that decision on 4 February 2020, continuing as at the time of the Hearing.
[18] It argued that the key question is what really motivated the action that Boeing had taken in standing down Mr Dimitrovski.
[19] The AMWU invited the Commission to find that Boeing's narrative of a legitimate disciplinary process was a "shield" for its true motivation, which was to stop Mr Dimitrovski from performing his roles as an AMWU Delegate and OHSR. It said this was not normal disciplinary procedure at Boeing because Mr Judd was treated differently, in that he had not been stood down pending the separate investigation into allegations made against him. It said the decision to return Mr Judd to the work area and remove Mr Dimitrovski from the work area on the same day, and that "human resources" had initiated the allegations of misconduct against Mr Dimitrovski, supported a finding that Boeing knew Mr Dimitrovski would exercise his OHSR powers against Mr Judd and the disciplinary process was concocted to stop this from occurring.
[20] Boeing contended that the application should be viewed in a factual matrix of a single employee being stood down for disciplinary reasons. It maintained that the evidence of Mr Sorrenson including in cross examination did not establish, and to the contrary extinguished any suggestion, that there was an illegitimate motive related to Mr Dimitrovski's union and safety roles.
[21] It argued that a finding that this was a lock out of an employee, constituting industrial action under the Act, would be an "utterly absurd" result. In emphasising the point, it referred to the regime established under the Act, which requires certain steps to be taken before industrial action is "protected" meaning a disciplinary stand down would not be lawful unless those steps were first taken.
[25] It was not disputed and I am satisfied that the application was made by the AMWU as a person directly affected by the alleged industrial action or, at the very least, as an organisation of which a person directly affected is a member, pursuant to s.418(2)(b) of the Act.
[26] On the materials before the Commission the AMWU has not established that the action subject of the application is industrial action, in the form of a "lock out" and within the meaning of s.19 of the Act.
[27] Relevantly, s.19(3) provides that:
"An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts".
[28] The parties urged the Commission not to place any significance on the plural or the singular, which appears consistent with s.23 of the Acts Interpretation Act 2001 (Cth)[3] and is adopted.
[29] The AMWU did not argue that a stand down, on full pay, for disciplinary reasons, must in every case be industrial action under s.19(3). To the contrary, the AMWU accepted that a stand down would not be a lock out in the context of a bona fide disciplinary process.
[30] The AMWU's construction gives the words "under the contract" work to do, in my view properly so, and avoids the "utterly absurd" result Boeing cautioned against. If a disciplinary process involving a direction to stand down from employment on full pay is carried out in accordance with, or under, the contract of employment then it follows that there is no prevention of work under the contract.
[31] It was not put that the contract of employment or the Enterprise Agreement placed any fetter on the right to stand down with pay. To the extent not expressly provided in the Enterprise Agreement, that right may be implied as a term of the contract of employment.[4]
[32] Having regard to the facts that are agreed in this matter and the way in which the argument was framed, it follows that the real question for determination in this case is: was the decision to stand down Mr Dimitrovski in truth for disciplinary or for other reasons?
[33] I am satisfied that Mr Sorrenson's decision to stand down Mr Dimitrovski was based on his legitimate concerns about Mr Dimitrovksi's alleged behaviour in the workplace, such that an investigation into those allegations was warranted. Mr Sorrenson's decision to stand down Mr Dimitrovski was sound, able to be justified relative to other stand down decisions at Boeing, and in the circumstances a necessary precaution in seeking to preserve the integrity of the disciplinary investigation, protect other employees and afford a fair process to Mr Dimitrovski himself. Mr Dimitrovski is receiving full pay whilst stood down. The ulterior purpose put to Mr Sorrenson was not established in evidence and I found Mr Sorrenson to be a credible witness. In all of the circumstances I find that the stand down was a reasonable and lawful direction.
[1] [2015] FCAFC 25 (BHP Coal).
[2] [2017] FCAFC 228 (Adams).
[3] As in force at 25 June 2009, per s.40A of the Act.
[4] Clause 4.1 of the Enterprise Agreement and see, for example, Avenia v Railway & Transport Health Fund Ltd [2017] FCA 859.
Printed by authority of the Commonwealth Government Printer
Application dismissed. Commission found the stand down of Mr Dimitrovski was a bona fide, reasonable and lawful disciplinary action carried out under the contract/enterprise agreement, not a lock out or industrial action; no order made under s.418 (paras [33]-[35]).
[22] In the alternative, Boeing invited the Commission to find that a direction to stand down or not attend for work on full pay pending a disciplinary investigation is a lawful and reasonable direction which constitutes "agreement" for the purposes of and falls within the exceptions to industrial action at s.19(2)(b). It said this is either express or implied in the contract of employment and also reflected at clause 4.1 of the Enterprise Agreement (which refers to employee obligations to carry out duties as directed, provided that any direction by the employer must be consistent with a safe and healthy work environment).
[23] Both parties initially sought to rely on the Full Federal Court authority in CFMEU v BHP Coal[1] as authority for the identification of an "industrial character" in considering whether particular action constitutes industrial action. At the Hearing, after taking the opportunity to consider the more recent Full Federal Court decision in Adams v Director of The Fair Work Building Inspectorate[2]:
The AMWU modified its submissions to argue that there is no basis to limit the operation of the definition of s.19 by reference to the legislative note and, more specifically, the notion of industrial character; and
Boeing submitted that BHP Coal was not expressly overruled in Adams but, notwithstanding, sought to argue that the Commission need not have regard to industrial character in finding that there is no lock out in this case.
[24] For completeness, it was acknowledged that the Enterprise Agreement contemplates but does not include a definition of union delegate functions and responsibilities or a specific stand down or disciplinary process. Neither party produced Mr Dimitrovski's contract of employment or suggested that bargaining or related claims had anything to do with the present application.
[34] In light of this finding, there is no need to determine the relevance or presence of any industrial character. My finding as to the bona fides of the disciplinary action on the evidence before me appears to leave the point moot in any event.
[35] Having found that the disciplinary action is legitimate, on the AMWU's own case as it was framed, the stand down of Mr Dimitrovski is not industrial action and there is no basis to make an order under s.418 of the Act. For the above reasons, the application was dismissed.