"From your response, it seems that senior management at JBA has defended its position and further party-party talks will not yield a resolution."

1. The Respondent submits the Applicant clearly failed to follow the dispute settlement procedure. The first step required that the Applicant meet with his immediate supervisor and genuinely attempt to resolve the dispute. That did not happen. There was no genuine attempt by the Applicant to resolve the dispute. The second step was only available to him if step 1 failed to resolve the dispute. It was not available to the Applicant when he purported to escalate the dispute to Step 2. In any event, Step 2 also required the Applicant to meet with more senior management and genuinely try to resolve to the dispute. That did not happen. Instead, he escalated the dispute to the Commission once JBA defended its position, notwithstanding senior management expressed that it had still not had a proper opportunity to consider the matter.
2. The Applicant and the Respondent were required to follow the DSP in good faith. The Applicant did not. His representative did not adhere to his own deadlines to respond. The Applicant purported to escalate the dispute to Step 2 by emailing Mr Sorto despite no conversations having occurred by that point. Mr Sorto responded and said he would be able to consider the matter further the following week. Despite that, the Applicant says that because the company defended its position, no resolution would be possible. There was no bona fide attempt to resolve the dispute.
3. The Applicant was required to act in good faith in an attempt to resolve the dispute in steps 1 and 2 of the DSP. He did not. It is clear from the objective facts that he was hellbent on notifying a dispute and dealing with the inconvenience of the terms of the DSP by merely paying them lip service in so doing.
4. Given the Applicant has failed to adhere to the DSP, the application has not been properly brought to the Commission. For that reason, the Commission lacks jurisdiction to hear the matter.

1. The Applicant has posed the following question to the Commission:

Did Mario Pantalleresco's employer, John Beever (Aust.) Pty Ltd, act unlawfully when it purported to stand down Mr Pantalleresco during his ordinary hours in the mornings of 24 and 25 March 2022?

1. The Respondent disagrees with the question posed by the Applicant. Assuming jurisdiction, the Respondent submits the Commission should resolve the dispute by determining as follows:

Question 1: Could the Applicant have been usefully employed by the Respondent on 24 and 24 March 2022?

Question 2: If he could not have been usefully employed, was the lack of useful employment "because of" one or more of the permissible reasons listed in clause 13 of the 2002 Award?

1. Boral contracted with JBA to provide labour for that project. JBA is in the final stage of construction, which is anticipated to be complete in August this year. JBA has 22 employees who are working on the Geelong Construction Site. In earlier stages of the project, it had up to 70 employees on site. The Applicant is one of the 22 employees who perform construction work on the Geelong Construction Site.
2. On 23 March 2022, Boral advised the Company that 24 and 25 March 2022 were non- productive days (also referred to in the evidence as non-working days). The consequence of those dates being non-productive days is that Boral did not require the Applicant, nor any other of his colleagues, to work at the Geelong Construction Site on either of those dates. As a result, there was no work for JBA employees, including the Applicant, to perform on either of those dates. In this circumstance, there was a stoppage of work, as contemplated by clause 13 of the 2002 Award.
3. The Applicant himself recognises that JBA was entitled to rely on Boral's refusal to have work done on the Geelong Construction Site on 24 and 25 March 2022 to justify standing down those employees. The fact there was no work at the Geelong Construction Site is also evidenced by the Applicant's conduct. On the morning of 24 March 2022, (the first day he was stood down), he attended JBA's office in Port Melbourne and not his usual workplace, which is in Geelong.
4. There was no useful work for the employees who usually work at the Geelong Construction site to perform. JBA has employees deployed on some other worksites in Victoria, but the Geelong Construction Site represents about 80 percent of its revenue and the majority of its blue collar workforce in Victoria. JBA already had the employees it needed at the other sites. It did not require, nor would it have been useful or even practical given the very short timeframe between the notice of the stoppage Boral gave, for the Applicant to have worked at those sites for 3-4 hours on the mornings of 24 and 25 March 2022.
5. The effect of a decision to declare days non-productive is that Boral will not pay JBA for any labour on those days. When Boral decided that 24 and 25 March 2022 would be non-productive days, the only realistic option for JBA at that point was to stand down the employees who would otherwise have worked at the Geelong Construction Site those days. There was no useful work for them to do otherwise. Even though there is no wage cost in standing down the employees, JBA still loses the revenue, because Boral is not paying JBA for those days. There is certainly nothing to be gained as far as JBA is concerned, when Boral gives a direction that any day is to be "non-working".

1. The Applicant describes various kinds of work he claims he could have performed on 24 and 25 March 2022 that he says would have been useful. The Respondent rejects these suggestions as unrealistic and fanciful. It says he could not have been usefully employed on 24 and 25 March 2022.
2. The Applicant's first suggestion for "useful work" is in relation to a workshop that is located next to JBA's head office in Port Melbourne. The Applicant has been working at the Geelong Construction Site since 2019. He goes to the workshop for union meetings, but he does not work there. The Applicant says he could have undertaken various tasks to make the workshop "fully safe and functional".
3. The Operations Manager, Mr Sanchez disagrees with the Applicant's suggestion he could have been usefully employed in the workshop. Mr Sanchez recounts a conversation he had with the Applicant on the morning of 24 March 2022. In his conversation, the Applicant repeatedly suggested he could clean the workshop. Mr Sanchez spoke to the workshop coordinator and learned there were already two permanent employees who work in the workshop who had been allocated that task. It defies logic that JBA would ask the Applicant (and presumably his other 10 colleagues who were with him) to spend the morning cleaning the workshop, when that job was already being performed by the two employees who were employed there. There was no useful work for the Applicant to perform in the workshop.
4. The Applicant's second suggestion is that he could have performed work at a container yard in Campbellfield. No employees work at Campbellfield. The workshop coordinator, Andrew Christie oversees the container yard. He arranges for containers to be filled with necessary equipment when it needs to be delivered to a site. Mr Sanchez and Mr Christie both spoke to the Applicant on the morning of 24 March 2022 and explained to him there was no work for him to do. The Applicant was in Port Melbourne at the time (around 7:30am). He was scheduled to engage in employee claim action in the form of a complete stoppage of work at 11am. The idea the Applicant would travel to the container yard to 'test and tag' rigging gear is unrealistic; that was not his job and the Respondent did not need that work to be performed in any event. The company already employs a workshop coordinator to oversee the container yard.
5. The Applicant's third suggestion is that he could have maintained, repaired and cleaned JBA's company cars. Mr Sanchez explains, unsurprisingly, that the maintenance and repair of these vehicles is undertaken by mechanics and not JBA tradespeople. Cleaning is the responsibility of the employees who have been given the company car. The Applicant's suggestion that this would have been 'useful work' is again unrealistic and fanciful.
6. The Applicant's final suggestion is that he should have stood in for casuals at other sites at which JBA employees are located (he identifies the IXOM plant and Quantem terminals). Mr Sanchez explains why this suggestion is unrealistic, which is for the following reasons. There were no casual employees working on 24 or 25 March 2022 at the IXOM site. There were two casuals at the Quantem site in Geelong and two casuals at the Quantem site in West Melbourne. The casuals at the Quantem site in Geelong have been on the project since November 2021. One is a welding inspector and the other is a qualified welder. They know and understand the job they are on. The two casuals at the Quantem site in West Melbourne started the job on 15 March 2022 and completed it on 30 March 2022. Substituting those two casuals with Mario (or any of the other employees that had been stood down), would not have been practical. Firstly, they would have required site induction. Secondly, it would have taken time for them to get up to speed with the job, meaning there would be a loss in productivity. Mario does not work on these other sites. The casuals who do work there would have been working there before. They are allocated work to do, which ranges in how much time it will take. It would not make sense to cancel a portion of their shift for Mario to work in their place, especially on short notice, for a few hours. Again, it's not a realistic suggestion.
7. For the reasons above, the Commission ought to be comfortably satisfied the Applicant could not be usefully employed on 24 or 25 March 2022.

The lack of useful employment arose because of a reason that permitted the Respondent to stand down the Applicant

1. The Respondent submits that the Agreement permitted it to stand down the Applicant in the circumstances that it did.
2. Clause 13 of the 2002 Award allows JBA to stand employees where there is a stoppage of work because of, amongst other reasons:

1. any strike by any members of the union employed by the JBA; or
2. for any cause, including breakdown of machinery or failure or lack of power, for which cause the employer is not responsible.

1. The stoppage of work occurred as a result of Boral's decision to declare 24 and 24 March 2022 to be non-working days. Boral made this decision because the industrial action that was being engaged in on those dates meant it would have been uncommercial to engage JBA labour for those days. JBA stood down those employees that would otherwise have worked on the Geelong Construction Site.
2. The stoppage of work was inexorably linked to the industrial action being engaged in by the AMWU members who were employed by JBA. This link is further demonstrated by evidence of the industrial action that the AMWU notified on 25 March 2022 to be taken on 31 March and 1 April 2022 (i.e. the following week). Mr Sorto illustrates this clearly:

"Tony Mavromatis, AMWU State Secretary met with the Acciona Managing Director in the afternoon of Wednesday, 30 March 2022. As a result of their discussion, the AMWU withdrew the industrial action for 31 March 2022 and 1 April 2022. Boral then withdrew its decision for those dates to be non-productive days. As a result of Boral changing those dates to productive days, JBA revoked its stand down of JBA employees on the Geelong Construction Site."

1. The Applicant submits that JBA was responsible for the stoppage of work. The Applicant is very vague in how it develops this submission. It appears as though their basis is:

1. The Respondent bears the onus of proving it was not responsible for the stoppage; and
2. The stand down should be "ruled unlawful" unless the Respondent can show that it made a genuine effort to avert Boral's decision.

1. On a proper construction of clause 13 of the 2002 Award, it is in fact the Applicant who bears the onus to establish that JBA was responsible for the stoppage of work. There is no evidence whatsoever to support that it was. In any event, JBA was not responsible for it. The responsibility was jointly borne by the AMWU for organising the industrial action that led to Boral declare those dates non-productive and Boral for declaring those dates to be non-productive.
2. The Applicant relies on two decisions as support for these propositions. The first is a decision of the Federal Court of Australia in Townsend v General Motors-Holden's Ltd [1983] FCA 212; (1983) 4 IR 358 (Townsend). The second is a decision of a single member of the Commission in Australian Workers' Union v Brockman Engineering Pty Ltd [2015] FWC 2077 (Brockman).
3. In Townsend, the employer stood down its employees because there were too few parts for its assembly line (which had resulted from the supplier's workforce going on strike). In that case, with the exception of a few employees, the stand down was not in breach of the relevant award. This included employees on assembly lines that could have operated, but who had been stood down because it was undesirable for them to amass stockpiles.
4. In Brockman, the AWU gave Shell six days' notice of an indefinite stoppage of work. Two days before the action was due to start, Shell told its contractors (Veolia, USI Pty Ltd and UGL (the contractors)) that it would not require them to perform any maintenance work while the industrial action was being taken. The contractors stood its employees down the following day. The industrial action was withdrawn on the day that it was due to commence. The contractors' employees remained stood down. Deputy President Gooley accepted there was a stoppage of work because Shell had directed the contractors not to perform any work (which mirrors the case here). The Deputy President found that, although the contractors should have been more proactive in determining whether the industrial action was going ahead, they were not responsible for the stoppage of work because they were awaiting Shell's notice.
5. Neither Townsend nor Brockman assist the Applicant's case. It is useful to observe that in Townsend, Morling J held:

"In my opinion the question whether an employee cannot be usefully employed because of a strike is largely a question of fact. No doubt, as a matter of law, some considerations will be irrelevant in determining the question of fact. But I reject the argument that the economic consequences to the employer are to be ignored in deciding whether employees can be usefully employed. I accept that it is a material matter that work has been scheduled to be done by an employee on a day when, in fact, he is stood down. In many cases that will be a powerful indication that the work which was scheduled to be done was work which would have been useful to the employer. If the employee is stood down in those circumstances the employer will necessarily have to establish that because of circumstances that arose after the work was first scheduled to be done, the employee could not be usefully employed."

1. The Applicant implies the Respondent was somehow responsible for Boral's decision to declare 24 and 25 March 2022 non-productive. The evidence clearly shows the Respondent was taking active steps to avoid that situation from occurring. It was not in the Respondent's interest for that to occur. Its loss on the day that resulted from the industrial action was exacerbated by Boral's decision to declare the dates non- productive. JBA lost all revenue it would have received from Boral for supplying labour for three to four hours in the morning. There is no legitimate basis to suggest the Respondent somehow facilitated the decision.

1. For the reasons outlined above, the Respondent says the Commission lacks jurisdiction to determine the dispute and should dismiss the application accordingly.
2. In the alternative, the Respondent submits the Applicant's dispute has no merit. It ought to be dismissed by way of answering the proposed questions in the manner proffered by the Respondent."

• [27] In reply, on 26 May 2022, the Applicant submitted that,

1. "...As for the question, the respondent proposes an alternative to the Question in its 12 May 2022 outline of submissions (Outline at [5.1- 5.2]). The applicant accepts the respondent's question formulation (Respondent questions), and the Respondent questions will be addressed instead of the Question.
2. The applicant contends that in the Respondent questions, question 1 warrants an affirmative answer. If this happens, it is submitted that the application succeeds.
3. With question 2 of the Respondent questions, it is unnecessary to answer if question 1 elicits a "yes", but question 2 becomes determinative if question 1 is answered "no". At this early stage, the applicant concedes that the respondent's case in question 2 is weighted the respondent's way, and it would require an evidentiary surprise for a "no" answer to be produced.
4. Before the Respondent questions are addressed, issues of jurisdiction are dealt with.

1. On 18 May 2022, Bell DP issued a decision in Re John Beever (Aust.) Pty. Limited T/A John Beever Australia.1 The decision gave the FWC's approval for the John Beever (Aust.) Pty. Limited Victorian Workshop and Site Enterprise Agreement 2021-2025 (2021 Agreement). The 2021 Agreement supersedes the Agreement, and the relevant effect of this is that the FWC's power to arbitrate under cl 32.0 of the Agreement died on 25 May 2022 when the 2021 Agreement came into force.
2. When the application to approve the 2021 Agreement was before Bell DP, the parties in this matter and the AMWU were alive to this possibility, and it was addressed by the respondent sending an email to Bell DP's chambers at 10.05am on 17 May 2022 that said, among other things:

... [John Beever (Aust.) Pty. Limited] give[s] the following (private) undertaking to the AMWU (not involving section 190 of the Fair Work Act) in relation to the approval of the Agreement:

Mario Pantalleresco is permitted to utilise Clause 17 (Dispute Settlement Procedure) of the John Beever (Aust.) Pty. Limited Victorian Workshop and Site Enterprise Agreement 2021-2025 (Agreement), to pursue a dispute in relation to him being stood down on 24 and 25 March 2022 as if that dispute were raised under the John Beever (Aust) Pty Ltd Metal Engineering On-Site Construction Agreement 2017-2020.

1. At this juncture, it can be noted that a draft of these submissions up to [8] has been sent to the respondent, and it is agreed that the parties are desirous of simply continuing the present matter seamlessly with what has so far occurred under the Agreement, and to that end, the parties jointly apply under s 586 to the FWC to have the FWC make any amendment it considers necessary for this course to happen. This would still allow the respondent to press the jurisdictional issue raised in the Outline at [4].

1. In the Outline at [4], the respondent contends that the applicant failed to follow the steps in the Agreement's dispute procedure that are to precede referring a dispute to the FWC. The principle espoused by respondent here is accepted by the applicant: the FWC's jurisdiction in dealing with a dispute pursuant to an enterprise agreement's dispute procedure is dependent on compliance with the procedure.
2. As to reckoning whether the applicant did so comply, the applicant further cites these authorities:

1. Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; and
2. Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union.

1. In Energy Australia the Court remarked on the operation of an enterprise agreement dispute procedure not unlike the one here in that it required disputes to be raised on the shopfloor and then elevated if not settled. The remarks were prefaced with a view that a dispute resolution procedure should be given an operation that leans to "a sensible industrial outcome" rather than a legalistic or pedantic one.6 Moving along, the Court then observed that the dispute behind the litigation there concerned an enterprise-wide issue which would require the approval of senior management to resolve, and for that reason, the earlier steps in the procedure would have a "limited purpose".
2. In Maersk, in a similar vein to Energy Australia on how dispute procedures should be construed, Colvin J stated:

[86] The terms of a procedure for resolving disputes should not themselves be construed in a manner that turns them into an instrument for generating disputes as to whether the procedure itself has been followed. Such provisions must be construed having regard to their evident purpose as providing a mechanism by which to encourage discussion and resolution. They should be interpreted 'practically and with an eye to common sense' having regard to the context in which they will be applied so that they can be implemented 'in a clear way on a day-to-day basis at work sites'.

1. Then in Maersk, it was held that in the early stages of the procedure, there would be flexibility in how the dispute is characterised and progressed. As well, in following the procedure's steps, a complaint, inquiry or an email will generally do, and if there was no response to that inquiry or email, the inquiring party/email sender could rely on that failure to reply to move further up through the procedure.
2. In the present case, the applicant moved through pre-FWC referral steps mostly by email. He got the ball rolling on Wednesday, 23 March 2022, with an email sent a little under 3 hours after the stand down was announced. This email deviated from what the Agreement literally requires at the first step, i.e. in cl 32.1(a), in that it did not go to the applicant's "immediate supervisor". However, given the applicant was then disputing an action by the respondent's Executive General Manager - just like as remarked on in Energy Australia - one could think that the applicant disputing a directive of such a senior manager with the applicant's immediate supervisor would have limited purpose.
3. The next day, the applicant disputed the stand down in person with the respondent's operations manager and the Workshop Coordinator.
4. After that, the applicant obtained union representation and:

1. formal invocation of the dispute procedure on the standing down was made; and
2. a call to meet the "immediate supervisor" requirement in the procedure was attempted.

1. This was done by an email sent on the second day of the stand down, i.e. on Friday, 25 March 2022, at 8.23am.14 A prompt response, by 11am that day, was sought, and it is submitted that this should be understandable and within the procedure because the applicant was, at that very moment, stood down without pay.
2. The respondent then failed to do what the applicant sought, namely, have the immediate supervisor called-in as required under the procedure. It is submitted that the significance of this is that the respondent had then failed to follow that step, and therefore, under the Agreement, cl 32.3, the applicant was relieved of any duty to follow any other steps prior to FWC referral. This sub-clause, 32.3, is reproduced below:

If any party to the dispute fails or refuses to follow any step of this procedure, the nonbreaching party to the dispute will not be obligated to continue through the remaining steps of the procedure

1. Early in the following week, on Tuesday, 29 March 2022, the applicant emailed the respondent's senior manager, noting that the respondent's higher management was unyielding in its position on the stand down. Furthermore, with the prospect of further stand downs later in that week, it is contended that an expedited referral to the FWC (or, as then said by the applicant, the Board, which turns out to be a mistake in the Agreement - there is no such Board) was within the parameters of the procedure. Indeed, it is contended that with a red hot dispute in play, any dilatory conduct by anyone at this point would amount to "unreasonable delay", and therefore, it is submitted that haste cannot fairly be raised as a disqualifying consideration in adherence to the procedure.
2. From then, there was both quiet and action. As stated in the statement of Alberto Mateo Sanchez, dated 12 May 2022, on 30 March 2022, the AMWU State Secretary, Tony Mavromatis met with very senior management from the respondent's parent company, and from that, further stoppages of work were called off (averting anticipated stand downs later that week) and enterprise bargaining negotiations were to continue. That is the action.
3. The quiet was in the progress of the dispute. With the respondent on notice that a referral to the FWC or Board was soon to occur, but with nothing forthcoming from the applicant on the following day, or the next ..., it is submitted that it was open to the respondent to intervene and arrange some talks to see how the stand down issue could be resolved. However, the respondent, from then on, stayed mum on this subject. It is submitted that in an overall consideration of how the dispute procedure ran at this time, and whether there was compliance, the respondent's inactivity from 29 March 2022 to well past the close of business on 1 April 2022, when application was finally made to the FWC by the applicant counts against any complaint the respondent makes about the applicant acting precipitously. Furthermore, note that the requirement for disputants to meet in the step just before referral to the FWC, in the Agreement at cl 32.1(b), does not appear to place an onus on one or the other side to convoke a meeting; rather, it says such should occur. From this, it is submitted that the respondent's procrastination at this time can be taken to amount to a failure by it to cooperate in the speedy conduct of the dispute (see the Agreement at cl 32.4(c)).
4. For the reasons above, the FWC should find the applicant's engagement with the pre-referral steps in the dispute procedure sufficient and the application should proceed to the merits by the FWC now addressing the Respondent questions.

Question 1 - could the application have been usefully employed?

1. It is submitted that until the evidentiary case closes, it remains premature to attempt to answer this question. Nonetheless, there is an immediately discernible chasm in the respondent's case, namely, how the respondent anticipated, by 21 March 2022 that there would be no work for the applicant at the Boral project on 24 and 25 March 2022,21 but it then failed to get going on finding useful alternative work for the applicant. By the time the applicant arrived at the respondent's workshop, about half an hour before the usual start time on 24 March 2022, it is apparent that the respondent had not turned its mind to planning for something the applicant could do.
2. The above situation, along with the failure of the respondent to reasonably rebut the applicant's suggestions as to useful work, would lead to a conclusion that the respondent took the easy way out. This is not sufficient to justify a stand down.

Question 2 - were Boral's non-working day directions reason enough to stand down?

1. The applicant accepts that the stand down was based on Boral's direction, and once that direction was given, there was no work for the applicant at the Boral site. This aligns with the passage in the Award at cl 13 which reads "any stoppage or (sic) work for any cause"; and, in this regard, see Australian Workers' Union v Brockman Engineering Pty Ltd.
2. Moreover, the respondent appeared to try to find a way to assuage Boral's concerns about the impact of the notified industrial action. There is evidence adduced by the respondent of it attempting to engage with Boral, and the principal reason for a lack of meaningful engagement appears to be attributable to Boral. That said, cross- examination may show that there was more to this than what the respondent's evidence paints, so, again, judgment on this should be held over until after the evidentiary case has been wrapped-up."

• [28] On 1 June 2022, with the consent of the Applicant, the Respondent submitted that,

1. "... The point it wishes to make arises out of a judgement of the Commonwealth Industrial Court in Re Carpenters and Joiners Award [1971] CthArbRp 479; (1971) 17 FLR 330 (Re Carpenters) that is relied upon by the Applicant.
2. In Re Carpenters, the Court was asked to determine a dispute between the parties about the interpretation of a clause in the Carpenters and Joiners Award. It is apparent that the clause under consideration mirrors Clause 13 of the Award (which is in dispute in this matter in all material ways. The differences between the two clause are illustrated below for convenience:

The employer may deduct payment for any day upon which an employee cannot be usefully employed because of any strike by or participating participation in any strike by members or member of the union; or because of any strike by any members of the union employed by the employer; or because of any strike by or participation in any strike by any other union, organisation or association or by any branch thereof or by any members thereof who are employed by the employer; or because of any stoppage or (of) work (other than for inclement weather within the allowance prescribed by Clause Bl6 of this Division) for any cause, including breakdown of machinery or failure or lack of power, for which cause the employer is not responsible.

1. Two passages from that decision are significant and likely dispose of this matter.
2. The first passage is from the joint judgement of Chief Justice Spicer and Justice Smithers and is as follows:

"(c) Where the work available for performance by an employee would engage him for less than a full day's work then, for the purposes of cl.B10, he is an employee who as to that day cannot be usefully employed. Clause B10 is concerned with deductions of payment for "any day upon which" an employee cannot be usefully employed. It proceeds on the assumption that deductions are to be on a daily basis. The deduction contemplated is the amount payable for a day's work. The clause is not concerned with employment for part of a day."

1. The second passage is from the judgement of Justice Joske. Justice Joske agrees with the majority, but expresses some observations. One of those observations, which we say actually accords with the majority, is as follows:

"Since the phrase relates to a day's work, it is not sufficient that there is work for all or some employees for part of a day only and if that is the situation, employees cannot be usefully employed."

1. The court's observations about the temporal period of the "useful work" is clear; it must be for an entire day. It cannot be for a part of a day. This is fatal to the Applicant's case.
2. The Applicant's case is that there could have been duties that he could have performed from approximately 7am to 11am on each of March 24 and March 25 that would have been useful to the Respondent. The Respondent denies this. In any event, the decision in Re Carpenters highlights that whether or not there was work that could have occupied him for that part of each day has absolutely no bearing on his claim. This must be so because it was only for a part of a day. Therefore, his claim must fail on his own evidence.
3. The Applicant addresses this clause in paragraphs 25 and 26 of the submissions dated 28 April 2022. The Applicant appears to suggest that the excerpt of the majority judgement at paragraph 1.6 above somehow suggests Clause 13 of the Award could not be engaged at all. The basis for this submission is not clear. It appears to erroneously focus on the period of the stand down rather than that day's wages which the employer is exempted from having to pay.
4. Clause 13 excludes the obligation from having to pay an employee a day's wages in circumstances where for the day, (or any portion of it), he or she cannot be usefully employed because of one of the permitted reasons
5. On 24 and 25 March 2022, the Applicant was engaged in industrial action in the form of a complete stoppage of work for four hours. It follows that he could not have been usefully employed during at least those four hours. As a result, Clause 13 of the Award excluded the Company from having to pay wages for either of those days.
6. It must follow that the answer to the questions posed by the Respondent and agreed to by the Applicant are 'no' and 'yes'."

Question 1. Could the Applicant have been usefully employed by the Respondent on 24 and 25 March 2022?

• [29] In Australian Municipal, Administrative, Clerical and Services Union (052V) v Helloworld Travel Limited & Viva Holidays II Limited T/A Viva Holidays[79] Deputy President Coleman made reference to the judgment of Spicer CJ and Smithers J in Re Carpenters and Joiners Award[80]. Their Honours held that the term "usefully employed" in a stand down provision in an award "necessarily connotes that by the employment in contemplation there will be a net benefit to the employer's business by reason of the performance of the particular work".[81] The Deputy President stated:

"The requirement that useful employment carry a net benefit to the employer's business may be contrasted with broader concepts of 'usefulness' such as the utility of work for the maintenance of skills and production. Because useful work should carry a net benefit to the business, the employer's perspective on what work is useful will be highly relevant. Further, the requirement of net benefit to the business suggests that work of some immediate or prima facie value will not necessarily be of ultimate benefit. For example, there may be no net benefit to the business of production (which might otherwise in isolation be considered 'useful') if there is simply no market for the products that are produced. A net benefit might not necessarily need to be an economic one, although the economic consequences of particular work for the employer are clearly relevant to whether an employee can be usefully employed."[82]

• [30] The Deputy President found that although there was work to be to be performed during the stand down periods it did not mean that it was useful work for those employees who were stood down. "There is no rule that any available work must be shared between employees. If useful work has been assigned to one employee, a consequence may be that there is no useful work for another employee."[83]

• [31] In the present matter, the Applicant argued that he could be usefully employed cleaning and maintaining the Workshop. Mr Sanchez gave evidence that the Workshop Coordinator informed him that there were already two permanent workshop employees who had been allocated the task of cleaning. Although this work may have been useful, it does not necessarily follow that it was useful work for the Applicant or any of the other Geelong Site Workers at that time.

• [32] The facts in this matter make it clear and I so find that there was no useful work for the Geelong Site Workers to perform. Boral's Geelong site represents approximately 80 percent of JBA's revenue and the majority of its blue-collar workforce in Victoria. Given that Boral issued its direction with such short notice, it was unrealistic that there would be any requirement for additional workers at the Respondent's other sites. This work was already allocated to other employees.

• [33] The proposed work at Port Melbourne would not have been useful to JBA. In any case the Applicant did not work at Port Melbourne. He has worked at Geelong sites since 2019. Two permanent employees who worked at the Port Melbourne workshop had already been allocated useful tasks. There was nothing for the Applicant to do there.

• [34] There was also no work at Campbellfied. JBA already employs a workshop coordinator there. In any case, it would not have been possible for the Applicant to get to Campbellfield from Port Melbourne before he was due to commence industrial action. The suggestion was nonsense.

• [35] I also reject that suggestion that the Applicant could have attended to the maintenance, repair and cleaning of cars. That was not his job. Finally, for the reasons explained by JBA it would not have been appropriate to replace casuals with the Applicant.

• [36] Consequently, I prefer the evidence of JBA about why the work proposed by the Applicant would not have been useful. There was nothing that the employees could have done which would have carried a net benefit to the business. I reject the Applicant's evidence about the alternative duties that he could have performed.

• [37] I find that the applicant could not have been usefully employed by the Respondent on 24 and 25 March 2022.

Question 2. If he could not have been usefully employed, was the lack of useful employment "because of" one or more of the permissible reasons listed in clause 13 of the Award?

• [38] This matter was not hotly contested. The Applicant himself recognised that JBA was entitled to rely on Borals refusal to have work done on the Geelong Site on 24 and 25 March to justify standing down the employees.[84]

• [39] From March 2021 the parties have engaged in enterprise bargaining. In February 2022, a protection action ballot authorised the Applicant and other AMWU members to take protected industrial action. Boral's decision to declare 24 and 25 March 2022 as non-working days was a result of the planned industrial action to occur in the afternoon of those days. It can be said that, therefore, JBA has indirectly caused the stand down. However, I reject the notion that indirect causality makes JBA responsible.

• [40] Borals decision to declare the days as non-working not only meant that the Geelong Site Workers were left idle, but also that JBA lost all the revenue it was to receive from Boral. The Respondent sought to minimise its losses and did so by standing down the Geelong Site Workers. The stand downs were a natural consequence of Borals refusal to have work done.

• [41] I reject the Applicant's suggestion that there was any suspicious behaviour on the part of the Respondent. Boral only notified the Respondent that 24 and 25 March 2022 were non-working days at 5:00 pm on 23 March. The Respondent acted promptly and notified the Geelong Site Workers at 5:26 pm that they were stood down. I decline the Applicant's invitation to find that JBA contributed to the cessation of productive work. It did not. The co-contributor to the stoppage was in fact the AMWU. It organised industrial action that let to Boral declaring the relevant days as non-productive.

• [42] Consequently, I find that the lack of useful employment was because of one of the permissible reasons listed in clause 13 of the Award, namely, that there was a stoppage of work for which JBA was not responsible.

• [43] Finally, for completeness, the parties referred to the words "for any day" in the Award stand down term and made submissions on whether they allowed for stand downs that did not extend for the whole day. However, because the matter has been dealt with by me answering questions 1 and 2 I do not need to decide between the competing contentions of the parties about the meaning of "for any day".

• [44] Mr Pantalleresco's application for a remedy in the form of an order requiring an 8-hour re-crediting of the Applicant's RDO balance is dismissed.

[5] [2017] FWCA 5030, [4].

[7] [2021] FWCA 797.

[9] Witness Statement of Mario Pantelleresco dated 28 April 2022 (Exhibit 4), at Court Book p 75.

[10] Witness Statement of Alberto Sanchez (Exhibit 25), at Court Book p 166.

[11] Witness Statement of Mario Pantelleresco dated 28 April 2022 (Exhibit 4), at Court Book p 75.

[12] Witness Statement of Alberto Sanchez (Exhibit 25), at Court Book p 167.

[13] Witness Statement of Mario Pantelleresco dated 28 April 2022 (Exhibit 4), at Court Book p 76.

[15] Witness Statement of Alberto Sanchez (Exhibit 25), at Court Book p 167.

[19] Witness Statement of Mario Pantelleresco dated 28 April 2022 (Exhibit 4), at Court Book p 78.

[23] PR737063.

[25] Witness Statement of Alberto Sanchez (Exhibit 25), at Court Book p 167.

[29] Witness Statement of Jose Sorto (Exhibit 19), at Court Book p 147.

[30] Witness Statement of Alberto Sanchez (Exhibit 25), at Court Book p 169.

[35] Witness Statement of Mario Pantelleresco dated 28 April 2022 (Exhibit 4), at Court Book p 80.

[36] Witness Statement of Alberto Sanchez (Exhibit 25), at Court Book p 172.

[38] Witness Statement of Mario Pantelleresco dated 28 April 2022 (Exhibit 4), at Court Book p 81.

[39] Witness Statement of Alberto Sanchez (Exhibit 25), at Court Book p 174.

[41] Witness Statement of Mario Pantelleresco dated 28 April 2022 (Exhibit 4), at Court Book p 81.

[47] [2014] FWCFB 7447 ('Golden Cockerel').

[49] [2017] FWCFB 3005 ('Berri').

[50] [2005] HCA 10; (2005) 222 CLR 241.

[52] Berri (n 25) 10, [41] quoting Amcor Limited v CFMEU [2005] HCA 10; (2005) 222 CLR 241, 246 (Gleeson CJ, McHugh J); 262 (Kirby J) 262.

[53] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355,382 per (McHugh, Gummow, Kirby and Jayne JJ).

[54] [2017] FWCFB 1621 at [21].

[55] Kucks v CSR Limited [1996] IRCA 166; (1996) 66 IR 182 at 184.

[56] City of Wanneroo v Australian, Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 at 440; See in general Golden Cockerel (n 23) at [19]-[22].

[57] [2006] FCA 616.

[59] [2015] FCAFC 142.

[61] NTEU v La Trobe University [2015] FCAFC 142 [109] (White J).

[62] [2009] FCA 970; (2009) 188 IR 297, [19]-[22].

[63] (1982) 149 CLR 337.

[67] [1996] IRCA 166; (1996) 66 IR 182, 184.

[68] [2017] FCA 346, [29].

[69] See Howard Smith and Co Ltd v Verawa [1907] HCA 38; (1907) 5 CLR 68, 78; Farmer v Hanon [1919] HCA 13; (1919) 26 CLR 183, 197 and White v Australian and New Zealand Theatres Ltd [1943] HCA 6; (1943) 67 CLR 266, 275; 281.

[70] Administration of Papua New Guinea v Daera (1973) 130 CLR 353, 446; Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, 348.

[71] [2008] HCA 57; (2008) 251 ALR 322, [35]( Gummow, Hayne and Kiefel JJ); [163] (Heydon J).

[72] [2009] NSWCA 407, [319] (Allsop P).

[74] (1994) 36 NSWLR 290, 304.

[77] (1978) 95 DLR (3d) 242, 262.

[79] [2021] FWC 6535.

[80] (1971) 17 FLR 33.

[82] [2021] FWC 6535 at 48.

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