Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2020] FWC 4348 of Deputy President Binet at Perth on 25 September 2020 in matter number C2020/2566

[1] Christopher Carter has lodged an appeal, for which permission to appeal is required, against a decision issued by Deputy President Binet on 25 September 2020 (decision).[1] The decision concerned an application made by Mr Carter pursuant to s 526 of the Fair Work Act 2009 (FW Act) for the Commission to deal with a dispute between him and his then employer, Auto Parts Group Pty Ltd (APG) about his stand down from his employment on 25 March 2020. In her decision, the Deputy President determined that Mr Carter had not been stood down lawfully pursuant to s 524(1) of the FW Act and that she was not satisfied in any event that the stand down was fair.[2] However, the Deputy President declined to grant the remedies which were sought by Mr Carter, including an order that APG pay him his unpaid wages for the period from 25 March 2020 until the date of the termination of his employment, on the basis that she had no power to do so. Mr Carter's appeal contends that the Deputy President erred in refusing him this remedy.

[2] The statutory regime for stand downs in the FW Act is contained in Pt 3-5. Section 524 provides:

524 Employer may stand down employees in certain circumstances

(1) An employer may, under this subsection, stand down an employee during a period in which the employee cannot usefully be employed because of one of the following circumstances:

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

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

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

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

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

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

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

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

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

[3] Section 526 provides for the Commission to deal with disputes about the operation of Pt 3-5 as follows:

526 FWC may deal with a dispute about the operation of this Part

(1) The FWC may deal with a dispute about the operation of this Part.

(2) The FWC may deal with the dispute by arbitration.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(3) The FWC may deal with the dispute only on application by any of the following:

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

(b) an employee in relation to whom the following requirements are satisfied:

(i) the employee has made a request to take leave to avoid being stood down under subsection 524(1) (or purportedly under subsection 524(1)):

(ii) the employee's employer has authorised the leave;

(c) an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (a) or (b);

(4) In dealing with the dispute, the FWC must take into account fairness between the parties concerned.

[4] Section 527 provides that a person must not contravene an order made by the Commission dealing with a dispute about the operation of Part 3-5. Such an order is enforceable under Part 4-1 of the FW Act.

[5] The facts of the matters relevant to this appeal are as follows. Mr Carter commenced employment with APG as State Sales Manager in Western Australia in October 2017. It appears that from October 2019, Mr Carter's relationship with his supervisor deteriorated, and that he made a complaint of harassment by his supervisor which was not addressed. On 23 March 2020, Mr Carter was advised that he was to be given a first and final warning about two occasions on which he emailed work documents to his personal email address. On 24 March 2020, in response to the COVID-19 pandemic, APG decided to close its offices to visitors and to limit the number of employees in its offices. On 25 March 2020, Mr Carter was advised that he was stood down without pay effective immediately for a period expected to be no less than three months because he could no longer perform useful work. He was denied access to his leave entitlements and required to return all company property.

[6] On 15 April 2020, Mr Carter filed an unfair dismissal application in which, in substance, he alleged that his stand down constructively constituted the termination of his employment. On 21 April 2020, at 9.30 am AWST, Mr Carter lodged his stand down application pursuant to s 526 of the FW Act. In this application, Mr Carter contended that his stand down was unlawful because there had been no stoppage of work (within the meaning of s 524(1)(c)), and he sought that the Commission make orders as follows:

"1. The stand down to be recognized ... as a redundancy/termination

3. Payment in lieu of unlawful stand down since March 26

[7] Upon receipt of this application by APG the same day, a decision was made to terminate his employment on the basis of redundancy. The redundancy was effective from that day (that is, 21 April 2020 was the last day of Mr Carter's employment). He was paid redundancy pay, a payment in lieu of notice and his leave entitlements in ostensible satisfaction of items 1, 2, 4 and 5 of the claim for relief in his stand down application.

[8] On 21 May 2020, Mr Carter discontinued his unfair dismissal application. His stand down application was heard by the Deputy President. Mr Carter was self-represented.

[9] In her decision, the Deputy President made three preliminary findings:

(1) No enterprise agreement applied to Mr Carter's employment, and his employment contract and the relevant modern award did not contain any stand down provisions.[3]

(2) Mr Carter had standing to make his stand down application, having been an employee of APG who had been stood down or purportedly stood down under s 524(1) of the FW Act.[4]

(3) Although Mr Carter's employment with APG had ceased on 21 April 2020, the application retained utility "because a finding in this matter would allow him to commence proceedings to recover his unpaid wages and commission during the period he was 'stood down'".[5]

[10] The Deputy President then said that three requirements were necessary to found a valid stand down under s 524(1): first, one of the circumstances in paragraphs (a)-(c) must exist; second, it must be the case that the relevant employee "cannot usefully be employed"; and, third, the fact that the employee cannot usefully be employed must arise because of the circumstance in paragraphs (a)-(c) which is found to exist.[6] In relation to the first requirement, the Deputy President found that there was no stoppage of work within the meaning of s 524(1)(c) (there being no suggestion that paragraphs (a) or (b) were relevant).[7] In relation to the second and third requirements, the Deputy President found that she was not satisfied that Mr Carter had no useful work to perform, meaning that the causation requirement could also not be satisfied.[8] Next, under the heading "Consideration of Fairness", the Deputy President said that an employer should as a matter of fairness explore what alternative arrangements might be entered into before taking the "drastic step of refusing to pay an employee's wages", and found it was unfair that APG did not explore alternatives to being stood down without pay. The Deputy President concluded, accordingly, that she was not satisfied that even if Mr Carter's stand down was lawful that it would have been fair in all of the circumstances.[9]

[11] Finally, the Deputy President dealt with the issue of remedy, and noted that two items in his application had not been addressed, namely "Restraint of trade removed" and "Payment during the period of stand down (other than public holidays)".[10] The Deputy President then said:

"[76] Mr Carter has not identified any legal basis upon which I might vary the contractual terms of his now terminated contract of employment.

[77] In Schell v Ensign Australia Pty Ltd ( [2015] FWC 8825) Commissioner Johns observed:

"[2] ... Each of the original applications sought an order that the applicants be paid an amount referable to the period from when they were stood down to when their employment was terminated. In essence the original orders sought had all the hallmarks of a claim for back payments in respect of the identified period. On the face of the original applications it seemed, more likely than not, that the applicants, by way of remedy, wanted the Commission to enforce a past right. That is to say they wanted the Commission to exercise judicial power rather than arbitral power. That would have been beyond the jurisdiction of the Commission."

[78] Applying this analysis to the matter before me, it is not within my power to order APG to pay Mr Carter his wages for the Stand Down Period. Only a Court may declare a purported stand down null and void and make such orders (Dylan Collis v SPI Plumbing (Australia) Pty Ltd [2020] FWC 4196 applying Construction, Forestry, Maritime, Mining and Energy Union v DP World Melbourne Ltd [2020] FWC 4147 at [46] and Bristow Helicopters Australia Pty Ltd v AFAP [2017] FWCFB 487 at [53] to [57])."

[12] Mr Carter submitted that the Deputy President erred "in her decision to not make Auto Parts Group accountable for their decision to stand me down without pay", and said that the decision was inconsistent with the Commission's decision in Stelzer v Ideal Acrylics Pty Ltd.[11] It was clear, Mr Carter submitted, that in the decision his stand down had been found to be both unlawful and unfair, but nonetheless the Deputy President found that it was not within the Commission's power to order APG to pay Mr Carter his wages for the stand down period. This was to be contrasted with the outcome in Stelzer, where the Commission also found the employee had been stood down unfairly/illegally and the Commission had directed the employer to pay wages for the stand down period. Mr Carter submitted that if his stand down was unlawful/unfair and there were no stand down provisions in his employment contract, then APG was liable to pay his wages for the period of the unlawful stand down.

[13] APG's submissions were principally directed to a defence of its decision to stand down Mr Carter, which it said was necessary to avert his redundancy in the context of the social isolation requirements resulting from the COVID-19 pandemic. It submitted that Mr Carter had been left in a better position financially from the decision to stand him down from his position rather than make him redundant because he was paid for public holidays during the stand down period as well as accruing entitlements during this period from 26 March to 21 April 2020. APG also pointed to the fact that Mr Carter could have mitigated his loss and obtained JobSeeker benefits for the period, and it was also made clear to him that nothing in his employment arrangements would prevent him from earning other income during the period of the stand down.

[14] In relation to the question of power raised by Mr Carter's appeal, APG referred to the Commission's decision in Isturiz-Moron v Northside Community Service Limited,[12] in which the Commission refused to order the payment of wages in respect of an application made pursuant to s 526 of the FW Act on the basis that this would impermissibly involve the enforcement of a past right.

[15] There was no contention advanced by APG in the appeal (or at first instance) that the Commission lacked power to deal with the dispute once Mr Carter's employment terminated and, accordingly, this issue does not arise for consideration in the appeal.

[16] Insofar as the Deputy President concluded that she did not have the power to declare Mr Carter's stand down to be "null and void" or to make an order enforcing an entitlement to wages for the period of Mr Carter's stand down, we do not consider that she erred. The making of orders of this nature would necessarily have involved the Deputy President impermissibly exercising the judicial power of the Commonwealth by making a binding declaration of right and by enforcing rights to wages arising under Mr Carter's contract of employment and/or under the relevant and applicable modern award.[13]

[17] However, that is not the end of the matter. Section 526 of the FW Act authorises the Commission to deal with disputes about the operation of the stand down regime in Pt 3-5 of the FW Act, including by arbitration. The purpose of this conferral of power is, it can readily be inferred, for the Commission to resolve such disputes. Although it is not directly stated what remedies or relief the Commission may grant in the exercise of its arbitral power, s 527 makes it apparent that the Commission is empowered to make orders binding on the parties to the dispute which are enforceable in a relevant court. The paramount consideration which the Commission must take into account in deciding whether to make any such order and, if so, the terms of such order, is "fairness between the parties concerned" (s 526(4)).

[18] There is nothing in the text of Pt 3-5 of the FW Act which precludes the making of a monetary order. We note that in other provisions of the FW Act conferring arbitral power, where it is intended that the Commission's power to make orders is not to include monetary orders or certain types of monetary order, this is expressly stated (see, for example, s 392(4) and s 789FF(1)). The explanatory memorandum for the Fair Work Bill 2008 makes it clear that the Commission is empowered under s 526 to make monetary orders in that it provides the following "Illustrative Example" concerning the exercise of arbitral power under s 526:

"Jenny is an employee of Howison and was stood down for three days. The second day of the stand down coincided with the start of five days of annual leave that Jenny had previously requested and which Howison had approved.

Howison did not pay Jenny for the first two days of her annual leave because of the stand down. Jenny applied to FWA for an order that she be paid for those two days during which the stand down occurred as she was on authorised annual leave. As Jenny had been authorised to take leave she would not be taken to be stood down.

Taking into account fairness between the parties, FWA could make an order that Howison pay Jenny for those two days. Alternatively, FWA could make an order that Howison re-credit Jenny with two days of annual leave if she did not receive any payment for those days."[14]

[19] We consider that the above extract confirms what we regard to be the ordinary meaning of s 526,[15] namely that the Commission may, taking into account fairness between the parties concerned, make an order requiring the payment of a monetary amount in the exercise of its arbitral power to resolve a dispute concerning the operation of Pt 3-5.

[20] There can sometimes be a fairly fine line between the impermissible exercise of judicial power by an arbitral tribunal and the proper exercise of arbitral power. The High Court decision in Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd[16] is an example of this. In that matter, a Local Coal Authority established pursuant to the Coal Industry Act 1946 (Cth) and the Coal Industry Act 1946 (NSW) was called upon to deal with a dispute concerning employees who had effectively been stood down without pay for a period of three days by their employer when they attempted to return to work following a strike. The Authority (constituted by Mr Cram) determined that the stand down of the employees on the three days was "wrong" and that the employees were "entitled to payment of wages for shifts lost on those days".[17] The majority of the Court (Mason CJ, Brennan, Deane, Dawson and Toohey JJ) determined that the Authority's determination amounted to an impermissible attempt to enforce existing legal rights. They said:

"The finding and decision that the employees "are entitled to payment of wages for shifts lost on those days" is plainly a finding that they are entitled to the payment of wages for the days in question under the award and the relevant contracts of employment. As such the finding corresponds precisely to the determination sought by the Unions, as stated by Mr Cram at the commencement of his decision. In these circumstances the applications sought determination of the employees' legal rights and the decision provided such a determination.

Confirmation that this was the character of the application and of the decision is provided by the arguments presented by the Unions and the reasoning of Mr Cram. Justification for the prosecutor's refusal to provide work and its insistence on the signing of the promise not to engage in further industrial action was a central issue and this in turn excited the issue whether the employees' industrial action amounted to a contractual repudiation. This issue was determined, in conformity with common law principle, in favour of the submission made by the Unions.

On the other hand the Unions submit that there are references in the arguments presented to Mr Cram and in his decision to matters that suggest that he was engaged in an arbitral function. It seems that the Unions contended that the "stand downs" were "harsh and unjust", but this was in the context that the prosecutor could or should have applied to the Tribunal for relief of that kind. There was also a statement in the decision that, had Mr Cram been satisfied that the employees, on resuming work for two days, intended to engage in a stoppage for seven days, there would have existed grounds for exercising a discretion in the prosecutor's favour as a matter of equity and reasonableness. This statement evidently echoes s.34(2) of the Commonwealth Act (s.40(2) of the State Act) which, in its application to an Authority, requires it to act according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms. But even if Mr Cram contemplated that in a given situation he might depart from the application of legal principle, that situation did not arise.

In the result Mr Cram's decision was an exercise in determining the rights of the parties in accordance with legal principle. Neither the applications made by the Unions, nor the submissions made on their behalf, nor the decision, lends any support to the view that Mr Cram was engaged in settling a claim for remuneration as a matter of what was right and fair rather than as a matter of legal entitlement. And there is certainly nothing to suggest that Mr Cram was asked to vary the Awards or that he was engaged in making such a variation."[18]

[21] The majority distinguished this outcome from that which pertained in R v Lydon; Ex parte Cessnock Collieries Ltd.[19] In that case, a Local Coal Authority had ordered the payment of an attendance allowance to a certain group of workers, and the Court rejected a contention that this amounted to enforcement of an existing award entitled. In Re Cram, the majority said:

"What the Unions sought from Mr Cram was very different from the dispute determined by Mr Lydon in Cessnock Collieries. There the dispute was about the applicability to past and future work of the conception of attendance money. In that case the Court pointed out (at p.23) that Mr Lydon's jurisdiction or power depended on the existence of a dispute about a local industrial matter, not on arguments used to support the claim or the source from which the claim grew or upon the reasoning by which Mr Lydon reached or justified his conclusion. Here, the dispute notified by the Unions involved no element of future conduct. Moreover, it asserted claims to payment of wages, without indicating that the claims were made on any basis other than that arising from the contracts of employment and the Awards. The way in which the applications were presented and dealt with confirms, as we have already said, that the dispute concerned the prosecutor's failure to pay wages in accordance with the employees' legal entitlement. Neither the presentation of the applications nor the decision suggests that the claim for payment was based on matters of industrial policy as distinct from matters of legal entitlement..."[20]

[22] Wilson and Gaudron JJ dissented. Gaudron J distinguished between a claim for wages based on existing legal rights and one based upon industrial considerations:

"A claim for wages due constitutes a claim as to the existing legal rights of the employees on whose behalf such claim is made. As such it gives rise to a dispute the determination of which depends upon powers not possessed by bodies empowered only to conciliate and arbitrate...

However, a claim for wages which is based upon the employers' non-compliance with the conventions regulating the employer-employee relationship in the particular industry, gives rise to a dispute of a different nature. Such a claim is made without regard either to the existing legal rights of employees, or to the existing legal liability of the employer, and gives rise to a dispute which is capable of resolution by the exercise of the powers of conciliation and arbitration."[21]

[23] Gaudron J went on to say in relation to the particular decision made by the Authority:

"It remains to be considered whether the decision given by the Authority was directed to the industrial dispute above identified or, whether, as was submitted on behalf of the prosecutor, it constituted an attempt to determine the rights of the employees under the relevant Awards. The decision of the Authority, after recording the arguments advanced by the Unions and the prosecutor, proceeded to a finding that:

"... I do not consider the employees, by participating in the district wide stoppages, did, or intended to convey, a repudiation of their contracts. In my opinion, the employment contracts continued in force ...".

Whilst a finding on this issue may have been relevant to a determination of the rights of the employees under the Awards, the Authority did not proceed to such a determination. Instead the decision records that:

"... the questions requiring answers are: Did the employees' refusal to sign the company's proposed employment Agreement justify the company's refusal to provide work, and pay wages, and if not did the employees by their industrial behaviour disentitle themselves to the payment of wages on the days in question?"

Although as framed, these questions were also capable of referring to the existing legal entitlements and liabilities of the parties, they were not expressed by reference thereto, and, significantly, the Tribunal did not base its answers to those questions upon an examination of the Award provisions, other than by noting that neither the Awards nor the common law acknowledged the right of the employer to require the employees to sign "an employment agreement of the type proposed as a precondition to allowing employees to commence work". This determination (although perhaps indirectly bearing on the issue of the employees' entitlement under the Awards) was of direct relevance to the question of whether or not the employer's actions were "right and fair" when considered in relation to the matter in dispute. It was this issue, described as "the reasonableness of the employer's actions in all the circumstances", which the Authority next considered, by examining the prosecutor's claim that "the employees intended to resume work for two (2) days, then partake in a further seven (7) days' stoppage". The Authority held that if that claim were sustained, there would, "as a matter of equity and reasonableness, exist grounds for the exercise of discretion in the employer's favour". Clearly, at this stage the Authority was not concerned with the legal entitlements of the employees; rather, it was addressing the industrial merits of the matter, and the question of what the respective rights of employer and employees should be if it were to be established that the actions of the employees were unreasonable.

In the result, the Authority decided that "the employer was wrong in refusing to allow employees to commence work" and the employees were "entitled to payment of wages for shifts lost on (the) days" on which work was refused. The terms of the decision do not refer to the rights of the employees under the Awards. When read in light of the Authority's consideration of the "reasonableness" of the actions of both employer and employees, the decision was a determination as to what their respective rights should be. It was thus not a decision concerning their existing legal rights under the Award. That conclusion is reinforced by the fact that the decision nowhere contains any reference to the actual provisions of the Awards entitling the employees to the payment of wages. Accordingly, the function exercised by the Authority was clearly effected "with a more elastic technique, and (with) more of an eye to consequences and industrial policy generally, than could properly be expected of a court"... The determination by the Tribunal was thus not an attempted exercise of judicial power."[22]

"I agree generally with the reasoning and conclusion of Gaudron J. Although the Authority's decision contains expressions of opinion on the legal rights and entitlements of the parties, those expressions of opinion are relevant to the reasoning which leads the Authority to its conclusion as to the industrial merits of the dispute. The view that the employer was not legally entitled to require written undertakings from the employees and that the employees did not repudiate their contracts of employment serves to buttress the ultimate finding that, in terms of industrial fairness, the disputed wages should be paid. The formation of such a view does not of itself amount to a usurpation of judicial power by the Authority."[23]

[25] The majority and minority judgments in Re Cram make it clear that a determination by an arbitral tribunal requiring one party to a dispute to pay a monetary amount to another does not necessarily involve an impermissible exercise of judicial power. It is necessary to examine closely the nature of the claim for payment advanced by the successful party and the submissions made in support of that claim, and the tribunal's reasoning in its decision, in order to identify the basis upon which the tribunal acted.

[26] It should be emphasised that there was no difference of opinion in the Court in Re Cram concerning the capacity of a tribunal to express its opinion about relevant issues of legal entitlement in the course of the proper discharge of arbitral functions. Thus the majority said:

"The making of a binding declaration of right is an instance of the exercise of judicial power. It stands outside the arbitral function. But there is no substance in the suggestion that an industrial tribunal cannot interpret laws, awards and other legal instruments. A tribunal could not discharge its arbitral functions if it were unable to form an opinion on a matter of interpretation. The formation of views and opinions on matters of interpretation in arbitral proceedings does not in itself amount to a usurpation of judicial power... Indeed, a tribunal may find it necessary to form an opinion as to the existing legal rights of the parties as a step in arriving at the ultimate conclusions on which the tribunal bases the making of an award intended to regulate the future rights of the parties... Of course, the formation of such an opinion does not bind the parties and cannot operate as a binding declaration of rights."[24]

[27] Applying the principles stated in Re Cram to the Commission's functions under s 526, it seems to us that while the Commission cannot make a monetary order in grant of a claim for an entitlement to wages said to be owing under an award or a contract of employment, the Commission is empowered to make a monetary order to resolve a stand down dispute based on its consideration of what is a fair outcome between the parties and other issues relevant to the industrial merits of the matters and, in doing so, is entitled to take into account whether, in its opinion, the stand down was authorised by s 524(1).

[28] The decision of the Commission (Anderson DP) in Stelzer v Ideal Acrylics Pty Ltd,[25] which is relied upon by Mr Carter in his appeal submissions, contains what is in our view a proper articulation and application of the relevant principles. In that decision, having found that the stand down in question was not consistent with the FW Act,[26] the Deputy President commenced his consideration of "remedy" (which we think may be an inapt term) as follows:

"[72] I now turn to whether a remedy in settlement of the dispute is appropriate.

[73] The Commission does not have jurisdiction to determine legal rights, such as whether the employer was legally correct in unilaterally running down Mr Stelzer's three weeks of annual leave accrual or whether Mr Stelzer had a lawful right to be paid personal leave once stood down.

[74] However, the Commission has jurisdiction to consider these questions in the context of making orders or recommendations for the fair and just settlement of this dispute."

[29] Having disposed of issues concerning annual leave and personal leave, the Deputy President gave consideration to what would be an appropriate outcome as follows:

"[87] It is nonetheless appropriate to provide a proportionate remedy to resolve the dispute. It is appropriate that the remedy bear some relationship to the component of the income loss incurred by Mr Stelzer which was unwarranted or unfair.

[88] There is no specific formula to apply in these circumstances though I adopt the approach below tested against overall fairness.

[89] Mr Stelzer's stand down was across a period of twelve weeks. For three of these weeks he was paid (annual leave accrual to around 13 May). For the following three weeks he was unfit for work (until 5 June). This leaves a remaining period of six weeks before his redundancy.

[90] On the basis that he would have been entitled to work an equal portion of the available (684) hours worked by the three fabrication employees in this six week period, he would have received payment for 171 hours (684 hours divided by 4). This equates to 4.5 weeks' pay.

[91] I also take into account that this time was available to Mr Stelzer to mitigate his loss by looking for alternate work (not that work was readily available in the midst of a pandemic), and that following the 1 July conference the employer was entitled time to reconsider its position. I also take into account the contingency that Ideal Acrylics did not know how long the stand down period would last, could not predict how the pandemic would impact actual work flows, was acting to avert redundancies, was endeavouring to protect its business in a rational way by seeking to reduce costs and was not eligible for a Jobkeeper wage subsidy. I will provide a one week discount on account of these factors.

[92] I note that Mr Stelzer was apparently in receipt of Jobseeker support during this period. Consistent with the Commission's established approach in such circumstances, I do not discount social welfare payments from an amount to be payable by an employer. Whether any portion of the Jobseeker payments apparently received by Mr Stelzer should be repaid in light of this decision is a matter between Mr Stelzer and Centrelink.

[93] Consequently, it is fair and reasonable for Mr Stelzer to be paid by Ideal Acrylics an additional 3.5 weeks in partial compensation for his income loss during the period of stand down in circumstances where I have found the stand down to have been based on rational business reasons but, in implementation, not consistent with the provisions of the FW Act.

[94] On the material before me this equates to a figure of $3,657.50 gross."

[30] The Deputy President indicated that he would make an order giving effect to this outcome if it was necessary to do so.[27]

[31] An approach whereby a dispute concerning a stand down is resolved by the making of a compensatory order consequential upon the formation of the opinion by the member that the stand down was not authorised by s 524(1), and which is made taking into account the business circumstances of the employer at the time of the stand down, any loss of income suffered by the employee, the efforts made by the employee to mitigate their loss, the current financial circumstances of the employer and employee and any other matter bearing upon the paramount consideration of fairness between the parties, would in our view be available as a matter of power under s 526.

[32] There is no inconsistency between this approach, which reflects the course taken in Stelzer, and the decisions in Schell v Ensign Australia Pty Ltd[28] (referred to in the decision under appeal) and Isturiz-Moron v Northside Community Service Limited[29] (referred to in APG's submissions). Schell was not decided on the basis set out in the passage on which the Deputy President relied at [77] of her decision. As is evident from [1] and [20]-[24] of Schell the five applications in that matter were dismissed because the applicants did not have standing to make an application under s 526(3) of the FW Act. This was because they were not employed by the respondent when the applications were made. Schell does not stand for the proposition that a monetary order cannot be made in the exercise of arbitral power to deal with a dispute about the operation of Part 3-5 of the FW Act. Moreover, the order sought by the applicants to which reference is made at [2] of Schell, was not the relief sought by them at the hearing. So much is clear from the first sentence at [2] and the discussion at [3]-[4]. Ultimately the application failed not because the order sought was beyond power but because the applicants lacked standing to seek the order. The decision in Isturiz-Moron also relied on what was said in [2] of Schell to dismiss a claim by the applicant for an order that the respondent "pay her ordinary fortnightly earnings from 14 July 2015 until her application was determined". As is clear from [37] of Isturiz-Moron the Deputy President considered the claim to be for the enforcement of "a past right" for the payment of an award or contractual wage entitlement. There appears to have been a proper refusal to entertain such a claim but, like Schell, the decision in Isturiz-Moron does not deal with the question of whether the Commission is empowered in the exercise of arbitral power to make a monetary order to deal with a dispute about the operation of Part 3-5.

[33] In this appeal, it is necessary to determine whether the Deputy President was correct in characterising the case advanced by Mr Carter as, relevantly, involving no more than a claim for a legal entitlement to wages consequent upon a conclusion that his stand down was not authorised by s 524(1). As a starting point to this consideration, we take into account that Mr Carter was "a self-represented party without legal training", as the Deputy President found,[30] and therefore unlikely to have been aware of the distinction between judicial and arbitral power or the extent of the relief which might properly be available under s 526 of the FW Act. His claims and submissions should not, accordingly, be parsed too closely. His application for the Commission to deal with the dispute relevantly stated, as earlier set out, that he sought "Payment in lieu of unlawful stand down since March 26". It is not self-evident to us that this was intended to be confined to payment of any wages to which Mr Carter had a legal entitlement. Mr Carter's written material filed in accordance with the directions made by the Deputy President did not address the issue of what orders the Commission should make in order to resolve the dispute. The audio recording of the hearing before the Deputy President also shows that neither party addressed at any stage the issue of any orders that might be made by the Commission in resolution of the dispute. The Deputy President did not invite submissions on this issue, nor did she indicate to Mr Carter that she considered or might find that his claim for "Payment in lieu of unlawful stand down since March 26" was one founded on an award or contractual right to the payment of wages which the Commission had no power to grant. The Deputy President reserved her decision at the end of the hearing.

[34] We do not consider therefore that there was a proper basis for the Deputy President to conclude definitively that Mr Carter was seeking no more than payment of a legal entitlement to wages. By disposing of Mr Carter's application on the basis of that conclusion rather than considering what orders might properly be available under s 526 to resolve the dispute taking into account fairness between the parties, we consider that the Deputy President constructively failed to exercise her jurisdiction. This constitutes appealable error. We therefore consider it appropriate to grant permission to appeal, and we uphold the appeal. We will remit the matter to the Deputy President to consider further what, if any, orders might be made under s 526 to resolve the dispute between Mr Carter and APG on the basis of the evidence and submissions to date and such further evidence and submissions as the Deputy President may determine to admit.

(3) Matter C2020/2566 is remitted to Deputy President Binet to further consider what, if any, orders might be made under s 526 of the FW Act to resolve the dispute between Mr Carter and APG in accordance with the above reasons for decision.

(4) Such further consideration shall proceed on the basis of the evidence and submissions received to date and such further evidence and submissions as the Deputy President may determine to admit.

[1] [2020] FWC 4348

[11] [2020] FWC 4129, 298 IR 333

[12] [2016] FWC 4649

[13] Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd [1987] HCA 29, 163 CLR 140 at 148 per Mason CJ, Brennan, Deane, Dawson and Toohey JJ

[14] Fair Work Bill 2008 - Explanatory Memorandum at [2090]

[15] See Acts Interpretation Act 1901 (Cth), s 15AB(1)(a)

[16] [1987] HCA 29, 163 CLR 140

[18] Ibid at 154 per Mason CJ, Brennan, Deane, Dawson and Toohey JJ

[19] [1960] HCA 19; 103 CLR 15

[20] [1987] HCA 29, 163 CLR 140 at 155 per Mason CJ, Brennan, Deane, Dawson and Toohey JJ

[24] Ibid at 149 per Mason CJ, Brennan, Deane, Dawson and Toohey JJ

[25] [2020] FWC 4129, 298 IR 333

[28] [2015] FWC 8825

[29] [2016] FWC 4649

[30] [2020] FWC 4348 at [11]

Printed by authority of the Commonwealth Government Printer