What happened

Ryan La Plume worked full-time as an export documentation clerk for Thomas Foods International Pty Ltd. He started in May 2015 and was one of four people in the export documentation team at the Adelaide head office. His main area of expertise was documentation for the United States, Canada and Mexico, and he also handled air freight paperwork ([8]-[10]).

The COVID-19 pandemic affected Thomas Foods' operations through reduced demand and supply-chain difficulties. The company continued operating, but the effects were not uniform across its business. The decision records that the employer had reduced labour costs in different ways, including by not rostering some casual employees, standing down some permanent employees, and not filling some vacancies ([11]-[16]).

On 28 April 2020, Mr La Plume was told that he would be stood down without pay from 4 May. The letter said that the pandemic had caused stoppages across Thomas Foods operations and that the employer had explored whether he could be usefully employed elsewhere, but found no alternative ([17]). He was the only member of his export documentation team stood down. His work, including export documentation and air freight paperwork, was distributed among the remaining team members ([18]-[19]).

Mr La Plume questioned the stand down and raised matters including JobKeeper, redeployment, review timing, secondary employment and ultimately redundancy. He applied to the Fair Work Commission on 18 June under s 526 of the Fair Work Act 2009 (Cth). The parties later agreed that his position would be made redundant from 25 June, but that agreement did not resolve his claim about the preceding stand-down period ([1]-[3], [22]-[33]).

The Commission accepted that the pandemic had materially affected the employer's business and that the employer could not reasonably be held responsible for those effects. The central questions were instead whether there was a stoppage of work and whether Mr La Plume could not be usefully employed because of such a stoppage ([47]-[48]). Deputy President Anderson found there had been a reduction in work, not a stoppage, and also found the way the employer allocated that reduction unfair ([52]-[60]).

The remedy was assessed as a contribution to lost income, rather than payment of all wages for the stand-down period. The decision identified 15 working days, or three weeks' gross pay, as proportionate, approximately $3,008.75. The Commission did not immediately make a formal order. It invited the parties to agree the corresponding amount and a payment time, not exceeding 14 days, and said an order would be made if required ([69]-[73]).

Why the court decided this way

The decision turns on the distinction between a stoppage of work and a downturn in the amount of work. Section 524(1) permitted an employer to stand down an employee without payment only during a period in which the employee could not be usefully employed because of one of the specified circumstances. The relevant circumstance here was s 524(1)(c), a stoppage of work for a cause for which the employer could not reasonably be held responsible ([34], [45]).

The Deputy President treated the statutory requirements as connected. It was not enough that the pandemic was outside the employer's control or that the business had suffered reduced demand. The employee's inability to be usefully employed had to result from the qualifying stoppage ([46]-[48]). The decision also said that a statutory stand-down right qualifies what would otherwise be an employer's obligation to pay wages, so s 524 should not be construed excessively broadly ([38]).

The court's construction of “stoppage of work” was neither as broad as any downturn nor as narrow as requiring the entire business to close. Some defined business activity had to cease, but the business could continue operating in other areas ([49]). That approach recognises that the statutory focus is “work”, not the business as a whole. It also leaves room for a stand down affecting a discrete area of work even where other employees remain at work ([49]-[50]).

Applying that construction, the decision found that both head office and the export documentation team continued working. Their overall workload had fallen because supply chains were affected, and this warranted fewer hours. But there was no cessation of a defined business activity ([52]). The evidence that work was reassigned was important: documentation work for some United States supply chains remained, and Mr La Plume's export and air freight work went to colleagues after he was stood down ([53]). The Deputy President therefore concluded that work had not stopped; demand for work in a continuing business unit had reduced ([54]).

Fairness was a separate and important part of the analysis. Section 526(4) required the Commission to take fairness between the parties into account ([35]-[36]). The decision did not treat every aspect of the employer's response as unfair. It accepted that the employer could reduce hours in response to circumstances beyond its control, that initially preserving jobs rather than making redundancies was reasonable, and that the employer genuinely considered redeployment ([57]).

The unfairness arose from how the reduction was allocated. Mr La Plume bore the entire reduction while other members of his team remained full-time. The employer had not established an objectively verifiable basis for selecting him. His particular country expertise remained relevant to work still being done, he had longer service than some other employees, and his low leave balance made it harder for him to absorb lost income ([58]). The decision's proposed fairer alternative was to apportion the reduction among comparable employees rather than place it on Mr La Plume alone ([59]).

The remedy reflected this mixed assessment. The Deputy President did not adopt a fixed formula, but aimed for a proportionate contribution linked to the part of the income loss considered unwarranted or unfair ([61]-[62]). The decision compared the 38 working days of stand down against a fair apportionment among three comparable employees. It then made deductions for the public holiday paid, the annual leave Mr La Plume could have used, and uncertainty about the duration and impact of the pandemic, along with the employer's aim of avoiding redundancies and reducing costs ([63]-[68]). The resulting figure was 15 working days, or three weeks' pay ([69]-[70]).

Before and after state of the law

The decision applied the general stand-down provisions in s 524, rather than the distinct JobKeeper stand-down provisions. Mr La Plume was employed by a head-office entity that was not eligible for JobKeeper, so the Deputy President stated that this dispute did not arise under Part 6-4C or s 789GDC ([16], [44]). The statutory question was therefore whether the ordinary requirements in s 524 were satisfied.

Before this decision, as presented in its reasons, the key statutory requirements were that the employee could not be usefully employed and that this resulted from one of the circumstances specified in s 524. The decision drew on earlier Commission and court authorities for the need for a causal connection and for the meaning of a stoppage ([46], [49]-[50]). It also applied the established approach to statutory construction, reading the words in their context and in light of purpose ([37]-[44]).

The decision's contribution is its clear application of that framework to reduced activity during the pandemic. It rejects the proposition that a fall in demand, by itself, amounts to a stoppage. At the same time, it does not require a business-wide closure. Its formulation requires some defined business activity to cease, while allowing for the possibility that work in one area may stop even though other parts of the business continue ([49]-[54]).

The decision also illustrates how s 526(4)'s fairness requirement operates alongside the statutory preconditions. Fairness did not turn a downturn into a stoppage. Rather, it informed the Commission's consideration of the dispute and the remedy, including whether it was fair to allocate the reduced hours to only one comparable employee ([55]-[60]). The reasons stress that the fairness assessment cut both ways: there were fair elements to the employer's response, but the selection and allocation of the burden were unfair ([56]-[59]).

The supplied decision does not describe subsequent changes to the law or later judicial treatment of this decision. It therefore supports explaining the reasoning and authorities considered in 2020, but not a claim about how later courts have treated it.

Key passages with plain-English translation

At [38], the Deputy President describes s 524 as an exception to the ordinary wage obligation and says it should not be applied with excessive breadth. In plain English, a stand-down without pay is not a general response to difficult trading conditions. The employer must fit the circumstances within the statutory language.

At [45]-[46], the reasons identify two requirements: the employee cannot be usefully employed, and that must be because of a qualifying stoppage. Put simply, the existence of an external event and reduced work is not enough unless the event has caused the relevant stoppage and consequent inability to usefully employ the person.

At [49], the decision gives its central explanation of “stoppage of work”: some defined business activity must cease, but the entire business does not have to stop. The practical distinction is between an activity that has ended and one that continues at a lower level.

At [52]-[54], the Deputy President applies that distinction to the export documentation team. The work continued, though in reduced volume, and tasks were passed to other workers. The decision therefore characterises the situation as reduced demand, not a stoppage.

At [58]-[59], the decision explains why the distribution of the reduced hours was unfair. Mr La Plume alone bore the full loss while comparable employees remained full-time. The reasons point to his continuing skills, service history and low leave balance, then identify apportionment among comparable employees as a fairer approach.

At [69]-[72], the decision translates the analysis into a proposed practical result. It identifies three weeks' gross pay, but says the parties could agree the amount and timing, with an order to follow if required. This matters because the stated remedy was not presented as an immediately made payment order.

What fact patterns trigger this precedent

The reasoning is most relevant to disputes under s 524(1)(c) where an employer relies on a fall in demand or activity as a stoppage of work. The key factual inquiry suggested by the reasons is whether a defined business activity actually ceased or whether the same activity continued at reduced volume ([49], [52]-[54]).

Evidence that tasks continued and were redistributed may be important. In this case, export documentation and air freight work remained and was reassigned to other team members ([53]). The decision does not establish that reassignment will always defeat a stand-down claim; it treats the continued work as part of the factual basis for finding no stoppage in this particular team.

The decision also addresses circumstances where employees in one work unit are treated differently from others. Where an employer reduces labour in a team, the fairness analysis may examine who bore the reduction, whether employees were comparable, what objective basis supported selection, and whether relevant skills and leave balances were considered ([58]-[59]). The decision acknowledges that not all team members need be treated identically: it considered it reasonable to retain a manager on full hours where operational and managerial work was involved ([64]).

The pandemic context mattered to the fairness assessment, including uncertainty about duration and actual workflows, and the employer's intention to avoid redundancies and reduce costs ([67]). But those factors did not replace the statutory requirement for a stoppage. The decision treated the external cause and the character of the work interruption as distinct questions ([47]-[54]).

How later courts have treated it

The supplied judgment contains no discussion of later decisions applying, distinguishing, approving or rejecting La Plume. It would therefore be unsupported to describe the later treatment of this decision from the material provided.

The reasons do identify authorities that Deputy President Anderson used in reaching the decision. SSX Services Pty Ltd v The Australian Workers Union [2015] FWCFB 3964 is cited for the Commission's authority to arbitrate stand-down disputes and its obligation to account for fairness ([36]). FMP Group (Australia) P/L [2013] FWC 2554 is cited for the required causal connection ([46]). Other authorities are cited in connection with what constitutes a stoppage of work or whether all employees must stop working, including Qantas Airways Limited [2020] FCA 656, City of Wanneroo [2008] AIRC 135 and Bristow Helicopters [2017] FWCFB 487 ([49]-[50]).

Those are authorities considered in the decision, not later treatment of La Plume itself. The judgment text establishes only that the Deputy President relied on or referred to them when setting out the relevant principles.

Still-open questions

The Deputy President expressly said it was unnecessary to explore the outer boundaries of “stoppage of work” or “useful employment”, because the facts did not constitute a stoppage on any relevant definition ([51]). The decision therefore leaves open how those expressions would apply where a defined activity is severely impaired but has not wholly ceased, or where some remaining tasks exist but cannot reasonably be performed by the particular employee.

The reasons also do not provide a general formula for apportioning reduced hours. They state that no specific formula applied, then assess the particular team's roles, the 38-day period, leave and public holiday payment, and the employer's uncertainty and commercial response ([62]-[68]). The resulting three-week amount should be understood as the case-specific remedy described in this decision, not a universal calculation rule.

The fairness discussion leaves factual questions for other circumstances: how to identify comparable employees, what selection criteria are objectively verifiable, and what weight should be given to leave balances, skills, seniority and managerial responsibilities. The decision gives examples from this dispute but does not prescribe a comprehensive test ([58]-[64]).

Finally, the conclusion leaves a procedural question about the form of relief. The parties were invited to agree the amount and payment time, and the Deputy President said an order would be made if required ([71]-[73]). The supplied text does not state whether a later order was made or whether the parties reached agreement.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.

Judgment (44 paragraphs)

[1]

Mr Ryan La Plume v Thomas Foods International Pty Limited T/A Thomas Foods International [2020] FWC 3690 (15 July 2020)

[2]

[2020] FWC 3690

[3]

Fair Work Act 2009

[4]

Section 526 - Application to deal with a dispute involving stand down

[5]

Thomas Foods International Pty Limited T/A Thomas Foods International

[6]

Application to deal with a dispute involving stand down - export documentation clerk - impact of COVID-19 - whether stoppage of work - whether able to be usefully employed - reduced work demand but no stoppage of work - fairness principle - payment for portion of stand down in resolution of dispute

[7]

[1] On 18 June 2020 Ryan La Plume (Mr La Plume or the Applicant) applied to the Commission to deal with a stand down dispute under section 526 of the Fair Work Act 2009 (FW Act).

[2] The responding party is the then employer, Thomas Foods International Pty Ltd (Thomas Foods or the Respondent).

[3] I conciliated the matter on 24 June 2020 and referred the parties into private conference. The dispute did not resolve. Mr La Plume requested it be arbitrated. What did resolve in private discussion was agreement between Mr La Plume and Thomas Foods that his position be made redundant effective 25 June 2020, and the terms of redundancy.

[4] I issued Directions on 26 June 2020 and heard the stand down dispute (by phone) on 9 July 2020.

[5] I received material by way of evidence and submission from Mr La Plume and Thomas Foods. I took oral evidence from Mr La Plume and from an officer of Thomas Foods, Ms Young (Group Human Resources Manager).

[8]

[6] The Thomas Foods group is a nationally operating meat processing and wholesale sales business based in Adelaide, South Australia with processing operations in multiple states supplying national and global export markets.

[7] The responding entity employing Mr La Plume (Thomas Foods International Pty Ltd) is but one of a number of corporate entities within the Thomas Foods group. That entity is the business which operates its corporate head office in Adelaide, where Mr La Plume worked. In contrast, persons employed in processing (for example, at Lobethal in South Australia) are employed by different entities within the group.

[8] Mr La Plume commenced with Thomas Foods in May 2015 as an export documentation clerk. He was one of four members of the export document team, which included his immediate manager and two other clerks. His senior manager was Group Cold Chain and Logistics Manager, Mr Miller. The export documentation team was based in head office.

[9] As a matter of practicality, the team divided work into country or regional groupings though staff generally covered the absence of others. Mr La Plume had particular expertise in export documentation relating to the NAFTA countries (United States, Canada and Mexico). At the time of his stand down this was his core work. He also managed air freight paperwork. Occasionally he performed work in a separate unit (sales) when this was required.

[10] Mr La Plume was a full-time employee.

[9]

[11] Since January 2020, the COVID-19 pandemic has disrupted global economic activity, with impacts affecting the Australian economy from February and March 2020.

[12] Restrictions on economic activity have been implemented by governments on the advice of public health authorities. Global demand has fallen. Unlike some, Thomas Foods has not ceased operating. However, from both a logistical and demand perspective, the impact of COVID-19 on its business has been material.

[13] Although the situation remains fluid, the fall in global demand and constraints in supply chains have impacted export markets serviced by Thomas Foods. For example, the significant impact of COVID-19 in the United States has led to logistical delays in getting export product to market even where demand exists.

[14] These impacts have been felt by Thomas Foods over time but not uniformly. Parts of the business have been more impacted than others. Demand and logistic constraints, together with uncertainty and economic threat, has led Thomas Foods to take steps to protect its commercial interests. This has included reducing its labour force by not rostering some casuals, by standing down some permanent employees and by not filling some positions as they become vacant.

[15] Approximately 300 employees have been stood down to date. Most of these worked in processing operations. Most persons stood down were employed by an entity within the group eligible for the government wage subsidy (of $1,500 per employee per fortnight) through the Jobkeeper programme. Eligibility was a product of the level of decline in processing activities.

[16] Decline in business activity in head office has been less significant. The employer of Mr La Plume and other head office staff (Thomas Food International Pty Ltd) is not currently eligible for Jobkeeper.

[17] On 28 April 2020 Mr La Plume was called into a meeting with Mr Miller. He was told that the impact of COVID-19 required the business to stand down some head office personnel, and that he would be stood down without pay from 4 May 2020 with his stand down to be reviewed on 29 June. He was given a letter which stated:

[10]

"Unfortunately, the Covid-19 Pandemic has also caused stoppages of work not only affecting your particular employer and workplace, but also stoppages across many other operations of Thomas Foods International. The organisation has been forced to stand down many employees.

[11]

The purpose of this letter therefore is to inform you that you will be stood down without pay from Monday the 4th of May, (sic) 2020. We have explored whether there is any other useful employment for you to do as an alternative to standing you down, but unfortunately there is none.

[12]

This stand down will be until further notice. We plan to keep you up to date as the situation develops. During the period of stand down you may access any annual or long service leave that you may have."

[13]

[18] Mr La Plume was one of five head office employees stood down that day. No others were from his work unit (the export documentation team).

[19] Mr La Plume worked the remaining scheduled days of the week (29, 30 April and 1 May) until his stand down commenced. During this time he ascertained that only he from the export documentation team had been stood down, that his work on export and air freight documentation would be spread amongst the remaining three employees, and that access to Jobkeeper, whilst uncertain, did not appear promising. In discussions with Ms Young, Mr La Plume declined to access the remaining annual leave balance he had accrued (about seven days).[2]

[20] Over the next six weeks, whilst at home with a young family and not earning income, Mr La Plume became increasingly anxious. He spoke to Mr Miller on around 10 May 2020 and then corresponded extensively with Thomas Foods (Ms Young and Mr Miller) in the weeks that followed. Some seventeen emails were exchanged between 11 May and 25 June 2020.[3] Nine were sent by Mr La Plume and eight were responses by Thomas Foods.

[21] The tone of these exchanges from both Mr La Plume and in reply from Thomas Foods was to the point, professional and respectful.

[22] Mr La Plume instigated these communications. He made reasonable inquiries about Jobkeeper, about the status and timing of the review of his stand down, about possible redeployment options, about a right to secondary employment, and then ultimately (on 10 June) his desire to be made redundant rather than remain on indefinite stand down.

[23] When (on 11 June) Thomas Foods rebuffed his request to be made redundant (indicating that a decision had not then been made to permanently remove his position) Mr La Plume sought advice from the Fair Work Ombudsman.

[24] A week later, Mr La Plume commenced these proceedings (18 June).

[25] As noted, following private discussions recommended by the Commission, agreement was reached that Thomas Foods would make Mr La Plume's position in the export documentation team redundant. Terms of redundancy were agreed (in line with National Employment Standards).

[14]

[27] Mr La Plume challenges the stand down on two grounds:

that it is not authorised by section 524 of the FW Act. In particular he says that the requirement in section 524(1)(c) that he "cannot be usefully employed because of...a stoppage of work for any cause for which the employer cannot reasonably be held responsible" has not been met; and

that, in any event, the terms of the stand down and the employer's conduct during the stand down made it unfair.

[28] Mr La Plume seeks an order that he be paid wages for the period of stand down, or in the alternative, eighty per cent of his wage (that is, pay for four out of five working days in each week of stand down).

[29] In support of these contentions Mr La Plume submits:

the stand down took him by surprise and when notified on 28 April 2020 he was given too little time to prepare before it came into effect (4 May);

there was no stoppage of work due to COVID-19 or any other reason. Up until he was stood down, he had a full work load, as did other members of the export documentation team;

no proper consideration was given to redeployment or alternate options, such as the option of all members of the export documentation team taking reduced hours. Instead he was the only team member stood down;

he had only a low annual leave balance at the time of stand down and this should have weighed against standing him down;

Thomas Foods did not adequately communicate during the period of stand down, leaving him in the dark and feeling isolated from the workplace and frustrated; and

the stand down would have been fairer if all members of the export documentation team had to work a shorter week (four days) rather than he alone being fully stood down.

[30] In response, Thomas Foods submit that the stand down was authorised by section 524 of the FW Act and fair in implementation. It submits:

[15]

[31] Though Mr La Plume and Thomas Foods agreed during the life of these proceedings to a redundancy on agreed terms, each recognise that the redundancy agreement did not resolve the stand down dispute.

[32] No jurisdictional barrier exists to determining the stand down dispute despite the subsequent redundancy agreement, and no submission to that effect was made. Mr La Plume was at the time of making the application an employee who had been stood down. He has standing to apply under section 526 of the FW Act. He seeks that the conduct of Thomas Foods be adjudicated for consistency with section 524 and fairness. He seeks a remedy, not for a future period but for the period between his stand down and the redundancy taking effect. The private redundancy agreement was made on the basis that Mr La Plume would independently form a view whether he wished to pursue the stand down dispute beyond the (then) conciliation. He has done so. He has actively prosecuted his claim.

[33] In these circumstances there is no impediment, either at law or in discretionary considerations, not to deal with the application notwithstanding the employment relationship having now ceased. There is utility in doing so.

[16]

[34] Section 524 of the FW Act provides:

[17]

524 Employer may stand down employees in certain circumstances

[18]

(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:

[19]

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

[20]

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

[21]

[22]

(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:

[23]

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

[24]

(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.

[25]

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.

[26]

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).

[27]

(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.

[28]

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

[29]

[36] Principles guiding the operation of these provisions were summarised by a full bench of the Commission in SSX Services Pty Ltd v The Australian Workers Union:[4]

[30]

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

[31]

[37] The well-established canons of statutory construction apply to section 524. These require the ordinary meaning of words used by the parliament to be adopted having regard to context and purpose.

[38] A statutory right to stand down is an important qualification to an obligation which an employer would otherwise have to pay an employee lawfully applicable wages for work performed. As an exception to what would otherwise be a fundamental term of an employment contract (to pay wages) the provision needs to be applied without excessive breadth but in a manner that gives effect to its language and purpose.

[39] Context also matters, both statutory and factual.

[40] The FW Act establishes a national scheme for the regulation of workplace rights, responsibilities and relationships across employers and employees of different age and maturity in diverse industries and enterprises in urban and regional Australia. Unsurprisingly, the FW Act contains multiple objects directed at common and competing interests. No single object has primacy though all must be taken into account.

[41] The stand down provisions fall within a Part of the FW Act (Chapter 3 Part 3-5) directed at the protection of workplace rights which in turn is subject to the objects in section 3 directed at fairness and a balance between social and economic objectives. Those include the object of providing "fair" workplace relations laws that are "flexible for business" and "promote productivity and economic growth"[5].

[42] A stand down under section 524 is a statutory tool available to a business (if pre-conditions are met) that sits alongside the right of an employer to make persons redundant where circumstances warrant. By providing the right to stand down there is a public policy purpose in giving an employer the option of retaining employment relationships in lieu of terminating employment. Doing so serves common and competing social and economic goals such as a continuing job but a temporary reduction in labour costs.

[43] The factual context applicable to Mr La Plume's stand down is relevant. He was stood down in the context of a global pandemic that is materially shaking the economy and the markets in which Thomas Foods is operating. Those impacts continue to have unique features not the least of which is uncertainty as to duration and intensity.

[32]

[61] It is 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 La Plume which was unwarranted or unfair.

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

[63] Mr La Plume's stand down was across a period of seven weeks and three days (38 working days). He was paid one day (the 8 June public holiday) but not otherwise. He declined to use his remaining seven days of accrued annual leave to mitigate his income loss.

[64] Not all of the four persons in the export documentation team were comparable employees. All were full-time, but one was a manager. It was reasonable for Thomas Foods to seek to retain a manager on full hours where possible, as she could (and did) operational and managerial work. Fairness would have required the reduction in work imposed on Mr La Plume (38 working days) to be apportioned amongst at least the other three most comparable employees (including Mr La Plume).

[65] That would have equated to a warranted reduction of about thirteen days of income loss for Mr La Plume compared to the thirty-eight days he sustained (a difference of twenty-five days).

[66] By way of discount against this loss, I take into account the public holiday he was paid and the fact that he could have mitigated his loss by using his accrued leave (which he was paid on redundancy). That is a discount of around eight days.

[67] I also take into account the contingency that Thomas Foods did not know how long the stand down period would last (though it estimated until at least 30 June), did not know exactly how the pandemic would impact actual work flows, was acting to avert redundancies and was endeavouring to protect its business in a rational way by seeking to reduce costs especially amongst employee groups whose wages were not subsidised by Jobkeeper. I apply a discount of around two days on these accounts.

[68] Consequently, it is reasonable to deduct twenty-five days in total from the actual income loss during the stand down period.

[33]

[71] It is unnecessary to make an order in these terms as both Mr La Plume and Thomas Foods have demonstrated a willingness to submit to this arbitration process. Each now has the opportunity, in light of this decision, to check what dollar amount equates to three week's pay (gross) and agree a reasonable time for payment (which should not be more than 14 days).

[72] If an order is required, I will make an order in these terms.

[73] Subject to the need to make an order, the dispute is determined on this basis.

[34]

The seal of the Fair Work Commission signed by Deputy President Anderson

[35]

Ms M Young, for Thomas Foods International Pty Ltd.

[36]

[2] Hearing, 9 July 2020, audio recording at 1:28:00

[37]

[3] A3: Emails 11/5, 11/5, 13/5, 14/5, 18/5, 18/5 and 19/5; A4: Emails 5/6, 9/6, 9/6, 10/6, 10/6, 11/6, 22/6, 24/6, 25/6 and 25/6

[38]

[4] [2015] FWCFB 3964 at [17]

[39]

[6] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Anor v FMP Group (Australia) P/L [2013] FWC 2554 at [31]

[40]

[8] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Ors v Qantas Airways Limited [2020] FCA 656 at [23] citing Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1 at [26]-[28]; Vehicle Builders Employees Federation of Australia v British Motor Corporation (Aust) Pty Ltd (1966) 8 FLR 70 at 74-75; Marson v Coral Princess Cruises (NQ) Pty Ltd t/as Coral Princess [2020] FWC 2721 at [12]

[41]

[9] City of Wanneroo v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2008] AIRC 135 at [30]; Bristow Helicopters Australia Pty Ltd v Australian Federation of Air Pilots [2017] FWCFB 487 at [45] - [46]

[42]

[10] See Ball v Thomas Foods International Murray Bridge Pty Ltd [2018] FWC 2486 at [26] to [28]

[43]

[11] See Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Ors v Qantas Airways Limited [2020] FCA 656 at [21]

[44]

Printed by authority of the Commonwealth Government Printer

Mr Ryan La Plume v Thomas Foods International Pty Limited T/A Thomas Foods International [2020] FWC 3690

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