plaintiff. Orders granted under s 126 of the Industrial Relations Act 1996 (NSW). The order permitted Newcastle Airport to stand down an employee, with or without pay, for a day or part of a day when the...
Key principles
Under s 126 of the Industrial Relations Act 1996 (NSW), an employer seeking a stand-down order must establish that it has applied, that the relevant employees have no useful...
Establishing those preconditions does not compel an order: the Commission retains a discretion under s 126, which should be exercised with caution and diligence because...
On the uncontested evidence about the severe reduction in airport operations, completed redeployment work and lack of further useful work, the Commission found the statutory...
The Commission exercised its discretion after weighing employee hardship against the public interest in the airport's continuing viability and the value of retaining specialised...
Issues before the court
Whether the Commission had jurisdiction to consider the application under s 126 of the Industrial Relations Act 1996 (NSW).
Whether the statutory preconditions for a stand-down order were established.
Plain English Summary
The Commission accepted that Newcastle Airport had no useful work for the employees it proposed to stand down because COVID-19-related travel restrictions and reduced travel had severely reduced operations. It found that the employer was not responsible for the cause of that situation. The Commission nevertheless treated an order as discretionary and considered the likely hardship to employees alongside the airport's importance to the region and the risk to its continued operation. It granted a six-month order with conditions intended to protect affected employees and regulate how any stand-down would occur.
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Deep Dive
2,070 words · generated 30/09/2026
What happened
Newcastle Airport Pty Ltd applied to the NSW Industrial Relations Commission under s 126 of the Industrial Relations Act 1996 (NSW) for an order permitting it to stand down 59 employees. The application arose during the COVID-19 pandemic, after Commonwealth and State travel restrictions and reduced consumer air travel had sharply curtailed airport activity. The decision was made by Commissioner Webster on 25 September 2020.
Whether the Commission should exercise its discretion to make the requested orders.
What conditions would govern any stand-down under the order.
Cited legislation
1 cited instrument linked from this judgment.
The airport's evidence described a substantial change in its operations. Before the pandemic, it handled about 220 services each week to seven direct destinations and served 1.28 million passengers annually. Passenger numbers in April, May and June 2020 were 99 per cent below the corresponding prior-year period. By early April, flight operations had fallen by 99.7 per cent. The applicant also reported that its revenue had declined by almost 90 per cent since mid-March.
The airport had already taken steps to reduce costs and redeploy employees. It said that 15 operational employees had been redeployed in May to work including repainting terminal interiors, landscaping and maintenance. That work had been completed by the time of the hearing. The chief executive's evidence was that the airport had no further alternative duties for staff and lacked the resources to undertake such duties if they existed. That evidence was uncontested.
The employer initially sought a 12-month order. After the Commission moved into conciliation, discussions resulted in proposed orders that the applicant sought and that the unions and respondents did not oppose. A respondent requested that employees be able to use accrued leave at full pay, half pay or another proportion of pay; the applicant agreed. Commissioner Webster granted an order for six months, subject to conditions governing notice, consultation, alternative work, leave and other matters.
The outcome was therefore not an unconditional authority to stand down every employee for the full period requested. The order allowed a stand-down only for a day or part of a day when the employee could not usefully be employed because of defined COVID-19-related travel restrictions. It also prescribed steps the airport had to take before and during any stand-down.
Why the court decided this way
The Commission approached s 126 in two stages. First, it considered whether the statutory preconditions were met. It identified three elements: an employer must have made the application; the employees must have no useful work; and the absence of useful work must result from an identified statutory cause for which the employer is not responsible.
The Commission was satisfied it had jurisdiction and found the employer had discharged its onus. The airport's evidence about passenger numbers, flights, revenues and completed redeployment work supported the conclusion that there was no useful work for the employees it proposed to stand down. The Commissioner treated that as a factual matter to be established in respect of each employee. The decision says the evidence, including a table setting out business units and current work, demonstrated the absence of useful work for the employees proposed to be stood down.
On causation, the Commission found that the situation existed because of COVID-19 circumstances, especially travel restrictions and passengers' decisions not to travel. It found those circumstances did not exist because of an act or omission of the applicant. That finding addressed the statutory cause requirement in s 126.
The second stage was discretionary. The Commissioner emphasised that proof of the preconditions did not make an order inevitable. The decision describes stand-down as serious because it can have significant financial and emotional effects on employees, and says the discretion should be exercised with caution and diligence.
The Commission expressly recognised the employee impacts. It considered that many or all of the affected employees would face reduced income and uncertainty about the future, creating stress for employees and their families. The Commissioner also noted that the employees were ineligible for support that other members of the community could access in analogous circumstances. This was not treated as a reason to disregard the application; it was an identified consideration in the discretionary balance.
The public interest considerations favoured making the order. The airport served the Newcastle and Hunter regions, and some employee roles were specialised and difficult to replace. The Commissioner considered that allowing the airport to preserve its operation could enable employees to return when demand recovered. Conversely, without an order, the ongoing viability of the operation was described as highly precarious, with a risk that employees might have no job at all.
The terms of the order also mattered to the discretionary decision. The Commissioner referred to important protective measures. Those measures included consultation and information duties, the ability to undertake reasonable secondary employment, efforts to identify alternative work, equitable allocation of available hours, and a prohibition on engaging additional labour for work current employees could safely and competently perform.
Before and after state of the law
The decision applied the wording of s 126 of the Industrial Relations Act 1996 (NSW). The section, as reproduced in the judgment, authorised the Commission to make a stand-down order if there was no useful work because of industrial action, machinery breakdown, or another act or omission for which the employer was not responsible. It also stated that a stood-down employee was not entitled to remuneration while stood down, subject to the allowance qualification in the section, and that stand-down time remained a period of employment for other purposes, including leave accrual and superannuation.
Commissioner Webster said there was “very little jurisprudence” concerning s 126 applications. The decision therefore explains the Commission's approach to the statutory text in this case, rather than describing an established body of case law. It identifies the employer's burden, distinguishes the statutory preconditions from the later discretionary question, and explains the factors considered when exercising that discretion.
The order's detailed conditions should be understood as the terms of the order made in this proceeding. The judgment does not say that every s 126 application must include identical safeguards, nor does it state that those conditions are statutory requirements in every case. The order gave the airport authority for six months and required, among other things, at least 14 days' written notice before a proposed stand-down, consultation, information about reasons and anticipated duration, genuine consideration of matters raised, and a written consultation record. A specific transitional term allowed employees notified on 8 September 2020 to be stood down no earlier than seven days after the order.
The supplied decision provides no later judgments or citations showing how subsequent courts or the Commission treated this ruling. It is therefore not possible from this material to describe any later development or say whether later decisions followed, limited or distinguished it. The decision itself records that the legal setting then contained little jurisprudence on s 126.
Key passages with plain-English translation
The Commissioner said the employer bore the onus of establishing three matters under s 126. In plain English, the employer had to show that it was the applicant, that there was no useful work for the employees concerned, and that the reason for that lack of work was a qualifying cause not attributable to the employer. The judgment provides no stable paragraph numbering, so the quotations below are identified by their place in the decision rather than paragraph numbers.
The decision describes stand-down as “an extraordinary” and serious matter and says the Commission should exercise its discretion “with caution and diligence.” In practical terms, the Commissioner treated employee hardship as a real part of the decision, not as an issue displaced by proof that work was unavailable.
On the evidence, the Commissioner found that the applicant had “discharged its onus to establish that there is no useful work to do” for the employees it intended to stand down. The finding was tied to the evidence in this case, including the severe fall in airport activity and the fact that temporary alternative duties had been completed.
The Commissioner also found that the circumstances did not exist because of an act or omission of the airport. In ordinary language, the Commission attributed the lack of work to pandemic-related travel restrictions and reduced travel rather than to something the employer had done or failed to do.
Finally, the Commission made a discretionary assessment. It recognised employee hardship while considering the airport's regional role and the risk to its ongoing viability. The reasons show that the Commission considered the consequences on both sides rather than treating the statutory conditions as an automatic route to an order.
What fact patterns trigger this precedent
The decision is most directly relevant to an application under s 126 where an employer says that employees have no useful work because of a disruption outside the employer's responsibility. The factual features here included a dramatic and documented reduction in passenger demand, extensive suspension of air services, a corresponding decline in revenue, prior cost-reduction measures, and evidence that redeployment work had been exhausted.
The decision also indicates the importance of evidence directed to the particular employees proposed to be stood down. The Commissioner said the no-useful-work question had to be established in respect of each employee. The airport relied on evidence about operations and a table describing work in business units. The case should not be reduced to the proposition that a general business downturn alone establishes the statutory test.
A further relevant feature was the employer's evidence about why the situation arose. The Commission found that pandemic circumstances, border restrictions and reduced willingness to travel caused the lack of work, and that the applicant was not responsible for those circumstances. That was a finding about the evidence before it, not a universal conclusion about every COVID-19-related workplace disruption.
The decision also concerns the discretionary balance after the threshold findings. The Commission considered the effects on employees, the public interest in the airport's regional role, the specialised nature of some jobs and the operation's viability. It is relevant where the statutory threshold may be met but the Commission must still decide whether to make an order and on what terms.
How later courts have treated it
The supplied judgment contains no discussion of later cases and cites no other judgments. It cannot establish how later courts or tribunals treated the decision. The decision's own description of the legal landscape is that there was “very little jurisprudence” concerning s 126 applications.
The source also does not establish the decision's later precedential status, whether it was followed or distinguished, or whether any later authority altered the Commission's approach. A research assessment of subsequent treatment would need later legal sources beyond the judgment provided here. Nothing in this analysis assumes that later treatment exists or describes it without supporting material.
Still-open questions
The judgment resolves the application before it, but its reasoning leaves matters that the text does not answer. It does not give a detailed account of how the “no useful work” inquiry is to be applied across different industries or what kinds of evidence would be sufficient in circumstances less extreme than the airport's. The Commissioner states that the question is factual and employee-specific, but does not formulate a broader evidentiary test.
The decision also does not explore in detail the meaning of “any other act or omission” in s 126 or the boundaries of employer responsibility. It applied the provision to the pandemic-related travel circumstances established in this case. It does not determine how the statutory cause requirement would apply where employer decisions, external restrictions and reduced demand operate together.
The relationship between the statutory remuneration rule in s 126(3) and the order's permission to stand employees down “with or without pay” is not analysed at length in the reasons. The order provides that employees may use accrued annual or long service leave at full pay, half pay or another proportion at their election. The judgment does not explain the operation of every pay or leave scenario under the Act.
Finally, the order was built around a specific operational and negotiated context. It includes consultation, alternative-work and fair-rostering provisions, and a six-month duration. The decision does not state which of these safeguards would be necessary or appropriate in a different application. Those questions remain dependent on the statutory text, the evidence, the proposed order and any later legal authorities.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
Judgment (6 paragraphs)
[1]
ex tempore decision
This application pursuant to s 126 of the Industrial Relations Act 1996 (NSW) (the Act) arises as a consequence of the COVID-19 pandemic and in particular travel restrictions imposed by the Commonwealth and State Governments of Australia in response to it and the reduction of air travel by consumers. Newcastle Airport Pty Ltd is the applicant (the applicant). The applicant operates Newcastle Airport in regional New South Wales and has experienced an extreme downturn in its operations in recent months.
The respondents to these proceedings are 59 employees of the applicant.
The matter came before the Commission on 9 September 2020 for mention where directions were made for the filing and service of evidence and submissions. One of the directions made was that the applicant emailed each of the respondents informing them of those directions by close of business, 10 September 2020.
The Commission made orders for substituted service with respect to the respondents in chambers on 10 September 2020.
In addition, I made a direction on 10 September 2020 that the parties file a short written outline with respect to the Commission's jurisdiction to make the orders sought in the Notice of Motion by close of business, 23 September 2020.
Section 126 of the Act is in the following terms:
126 Stand-down orders - suspension of payment of remuneration
(1) The Commission may, on the application of an employer or an industrial organisation of employers, order the stand down of employees of that employer or of members of that organisation if there is no useful work for the employees because of -
(a) industrial action, or
(b) breakdown of machinery, or
(c) any other act or omission,
for which the employer or employers concerned are not responsible.
(2) The Commission is to give high priority to the hearing and determination of any such application.
(3) An employee who is stood down by the Commission is not entitled to any remuneration (including allowances) while stood down. However, this subsection does not apply to any allowance that the Commission considers should be paid despite the stand-down order.
(4) The period during which an employee is stood down is to be regarded as a period of employment with the employer for all other purposes, including the accrual of leave and the calculation of superannuation and other entitlements.
(5) A stand-down order does not apply to an employee who is an apprentice or trainee (other than an existing worker trainee) within the meaning of the Apprenticeship and Traineeship Act 2001.
By way of Notice of Motion, the applicant asked the Commission to make a stand down order in respect of the respondents, to operate for a period of 12 months.
The matter came before the Commission for hearing today, 25 September 2020. The Commission granted leave to the Transport Workers Union of New South Wales (TWU) and the Association of Professional Engineers Scientists Managers Australia (APESMA) to intervene in the proceedings. Both the TWU and APESMA also sought to represent some of the respondents in the proceedings.
With the consent of the applicant and the interveners, the Commission moved into conciliation shortly after the hearing of the matter commenced. Then followed productive discussions that have resulted in the applicant seeking orders from the Commission, which are not opposed by the interveners or any respondent.
[2]
The applicant's evidence and submissions
In support of the Notice of Motion was an affidavit of Mr Peter Cock, Chief Executive Officer of the applicant sworn 3 September 2020.
Mr Cock gave the following uncontested evidence with respect to the applicant's operations and the impact of COVID-19.
Prior to COVID-19, Newcastle Airport was the second busiest airport in the state with approximately 220 services operated per week to 7 direct destinations, servicing 1.28 million passengers annually.
The applicant's main sources of revenue are;
1. 36 % aeronautical revenue, including passenger charges;
2. 38 % car parking revenue;
3. 13% rental car revenue;
4. 5% retail lease revenue; and
5. 8% other property and commercial revenue.
As a result of the COVID-19 pandemic and government advice and restriction on travel, from early April, almost all passenger services were suspended. Passenger numbers in April, May and June were 99% below the prior year, meaning Newcastle Airport had less than 1 % of normal passenger traffic. By early April 2020, Newcastle Airport experienced a 99.7% reduction in flight operations.
As at the 3 September 2020, the majority of flights by major carriers had been suspended with the only interstate flights operating being a skeleton number of Brisbane flights targeting essential mining workers. On some days of the week, there are no flights at all.
The applicant's revenue has declined by almost 90 % since mid-March 2020. The commercial outlook is uncertain and dependant on a range of unknowns including State boarder closures.
The applicant has applied for federal government assistance in the form of the Federal Government's JobKeeper wage supplement scheme. That application has been rejected and an objection has been lodged to that decision by the applicant. The Federal Government support package for regional airlines did not include direct support for Newcastle Airport.
Deciding to keep Newcastle Airport open to facilitate intrastate flights considered vital for regional communities in NSW, the applicant took a range of measures to reduce its expenditure, including measures resulting in an 18 per cent reduction in labour costs earlier this year.
In May 2020, the applicant redeployed 15 operational staff to alternative duties which included repainting terminal interiors, completing landscaping works and other maintenance and improvement works. The applicant says those works have now been completed.
[3]
The position of the respondents and the interveners
During the hearing of the matter, Mr Lucknow, a respondent to the proceedings requested a change to the Order sought to enable employees to take leave at a rate of either full, part or a proportion of their usual pay. That amendment was agreeable to the applicant and was not otherwise opposed by any party or the interveners.
Other than this, none of the respondents opposed the orders being sought despite being given an opportunity to do so. Both the TWU and APESMA did not oppose the orders being sought and were involved in negotiations today that have directly led to the amended proposed orders being presented to the Commission.
There was no evidence tendered by the respondents or interveners. Nor did they make submissions with respect to the application other than to indicate that they do not oppose it.
[4]
Consideration
The Commission was assisted by the submissions of the applicant with respect to the jurisdiction of the Commission. I am satisfied that the Commission has jurisdiction to consider the application for orders pursuant to s 126 of the Act.
In considering the application before the Commission, s 126 is to be considered in the context of the object of the Act at s 3, relevantly:
"The objects of this Act are as follows -
(a) to provide a framework for the conduct of industrial relations that is fair and just,
(b) to promote efficiency and productivity in the economy of the State"
From the plain words of s 126, it is clear that the applicant bears the onus to establish three things:
1. Firstly, that an employer has made the application;
2. Secondly, the employer has no useful work for the employees; and
3. Thirdly, that the cause of the absence of useful work be an act or omission (or other prescribed reason) for which the employer is not responsible.
Even if each of these preconditions are established by the applicant, the Commission is being asked to exercise a discretion, in that it "may" make the orders.
There is very little jurisprudence with respect to applications made to the Commission pursuant to s 126 of the Act.
It has been put today that the orders sought are extraordinary and it is a serious matter to stand down an employee from their work. The decision to do so will almost always have significant adverse effects upon the employees both financially and emotionally. The Commission should exercise the discretion contained in s 126 of the Act with caution and diligence.
The Commission can only exercise the discretion to stand down an employee if the applicant establishes that the employee has no useful work to do. This is a matter of fact to be established with respect to each of the employee respondents. I find that the applicant has discharged its onus to establish that there is no useful work to do in respect of the employees it intends to stand down.
Further, I find that the reason this situation prevails is because of the current circumstances involving COVID-19, and in particular the boarder closures and the decision of passengers not to travel as a consequence of the pandemic. These circumstances do not exist because of an act or omission of the applicant.
[5]
Orders
The Commission orders pursuant to s 126 of the Industrial Relations Act 1996 (NSW) that:
1. Newcastle Airport Pty Limited may stand down an employee with or without pay for any day or part of a day which the employee cannot usefully be employed as a result of "COVID-19 travel restrictions" , as defined herein.
2. Prior to standing an employee down, Newcastle Airport will:
1. give the employee written notice of Newcastle Airport's proposal to stand the employee down at least 14 days before the stand down is proposed to commence;
2. consult with the employee(s) proposed to be stood down and, where an employee is represented by a union or industrial association, that union or industrial association;
3. provide information to employees as to: (i) the reasons for the stand down; (ii) the nature of the stand down (i.e. whether it applies to a day or part of a day etcetera); and (iii) the anticipated duration of the stand down;
4. give prompt and genuine consideration to any matters raised by or on behalf of an employee in relation to the proposed stand down;
5. Newcastle Airport must keep a written record of any such consultation.
1. Any employee who is stood down under this clause will be treated for all purposes (other than payment of wages, if Newcastle Airport determines to stand the employee down without pay) as having not broken continuity of service notwithstanding the standing down.
2. An employee who is stood down under this order is able, during the period of stand down, to engage in reasonable secondary employment.
3. Newcastle Airport will make reasonable efforts to identify opportunities for alternative work for employees who are stood down, including outside the employment of Newcastle Airport and will duly notify employees of those opportunities if they arise. In particular, Newcastle Airport will take steps to ascertain whether opportunities for alternative work are available with the City of Newcastle and Port Stephens Council.
4. An employee who is stood down is able to give Newcastle Airport a request to engage in training or professional development and Newcastle Airport must consider the request and not unreasonably refuse the request.
5. An employee who is stood down under this order is entitled to use accrued annual or long service leave at either half or full pay or other proportion at his or her election.
6. In the event Newcastle Airport determines to stand down one or more employees pursuant to this order, Newcastle Airport must:
1. will ensure as far as reasonably practicable that hours of work available are allocated equitably and fairly between employees;
2. ensure that employees are rostered in an equitable manner, having regard to their duties and qualifications and in light of the needs of Newcastle Airport's business.
1. During the period of operation of this order, Newcastle Airport will not employ or engage additional employees or external labour to perform work which could be safely and competently performed by current employees of Newcastle Airport, including employees who have been or are able under this order to be stood down.
2. "COVID-19 related travel restrictions" means restrictions and/or reductions in air travel caused by the coronavirus pandemic and/or measures taken by governments to stop its spread.
3. This order will apply for a period of 6 months.
4. If a material matter or concern about these orders arises, Newcastle Airport, an employee subject to this order or an industrial association representing the interests of one or more employees subject to the order shall:
1. Try to resolve the material matter or concern at the workplace level by discussions between, Newcastle Airport, the relevant employee(s) and an industrial association representing the interest of the employee(s);
2. If the material matter or concern cannot be resolved under 12 (a), have liberty to apply to the Commission to resolve the matter and/or for variation, termination or extension of this order on 3 days' notice.
1. Nothing in this order prevents an employee raising a grievance or concern about the orders through the Newcastle Airport HR PRO Grievance Resolution Procedure.
2. Notwithstanding order 2, in respect of employees who were notified of a proposed stand down of their position on 8 September 2020, Newcastle Airport will be permitted to stand down those employees pursuant to this order, no earlier than 7 days from the date this order is made.
[6]
schedule 1
1. Bob Aldred
2. George Allan
3. Jason Bailey
4. Tamara Barge
5. Brad Barham
6. Teegan Bell
7. Kate Bennett
8. Duane Boaler
9. Matthew Borger
10. Kurt Boyes
11. Claire Burne
12. Denise Burne
13. Louise Caruana
14. Peter Cock
15. Angelo Cosgayon
16. Stephen Crowe
17. Cristal Davies
18. Alexander Donato
19. Angela Douglas
20. Alexander Dunn
21. Matthew Eastcott
22. Terry Edman
23. Kristie Ferguson
24. Alan Field
25. John Finn
26. Shane Giggins
27. Andrew Gill
28. Matthew Goldsworthy
29. Adam Gray
30. Suzanne Harasti
31. Khali Hoogwerf
32. Brian Hope
33. Naomi Jarvis
34. Lewin Jones
35. Brett Keily
36. Ben Kochanski
37. Alice Lavender
38. Curtis Lucknow
39. Merran Magill
40. Bede Maguire
41. Brett McCartney
42. Laura McCluskey
43. Alison McMillan
44. Colin Merrick
45. David Redmond
46. Melissa Rowe
47. Leanne Russell
48. Trevor Ryan
49. Bryce Scoular
50. Angela Shields
51. Caitlin Smith
52. Brent Steenbergen
53. Maria Thompson
54. Steven Webb
55. Rick West
56. Stephanie Wilson
57. Darryl Woodeson
58. Peter Wych
59. Tim Zorzi
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 09 October 2020
Orders granted under s 126 of the Industrial Relations Act 1996 (NSW). The order permitted Newcastle Airport to stand down an employee, with or without pay, for a day or part of a day when the employee could not usefully be employed because of defined COVID-19-related travel restrictions. It operated for six months and imposed notice, consultation, record-keeping, continuity, secondary employment, alternative-work, training, leave, rostering and other conditions. Employees notified of a proposed stand-down on 8 September 2020 could be stood down no earlier than seven days after the order.
Mr Cock gave evidence that there is no useful work available for the workforce. Specifically, he stated:
"Having reviewed its operations, NAPL does not have either further alternative duties, to which staff could be redeployed or the resources to undertake these duties if they existed."
This evidence is not contested.
Mr Cock also gave evidence that there had been consultation with staff with respect to the decision to make the application to the Commission that they be stood down.
The applicant also relied upon two affidavits of Ms Melissa Rowe, Executive Manager of Operations and Compliance of the applicant sworn 10 and 23 September 2020.
Ms Rowe gave evidence with respect to the information that has been provided to staff in relation to the application before the Commission.
On 31 August 2020, the respondents were informed of the decision to make the application that they be stood down in a briefing by Mr Cock followed by an email to staff the same day about the proposed stand down. The respondents then met with their Senior Leadership Team to discuss the proposal and raise any questions.
On 4 September 2020, a document answering frequently asked questions was circulated to the respondents about the proposed stand down.
On 7 September 2020, Mr Cock conducted a meeting with staff via Zoom to provide an update on the application before the Commission and provide information with respect to timing to the respondents.
On 8 September 2020, the applicant held discussions with staff with respect whether it was proposed that their position would be stood down. After these meetings, the respondents received an email confirming those discussions.
Attached to the affidavit of Ms Rowe sworn 23 September 2020 is a table setting out information with respect to the business units of the applicant and what work is currently required within each. Along with the evidence of Mr Cock referred to earlier, this demonstrates that there is no useful work for certain of the applicant's employees who it proposes be stood down either completely or partially.
In determining whether it is appropriate for the Commission to exercise the discretion to make the orders sought, I consider it relevant to take into account the significant impact the decision will have upon the respondent employees. Many, if not all, of the employees stood down will be adversely impacted with a reduction in income and lack of certainty about their future. This will place them and their families under significant stress, particularly because they are ineligible for the support other members of the community have been able to access in analogous circumstances. This is happening to them for reasons that are outside of their control and for which they are not at fault. I acknowledge these impacts in making this decision and take them into account.
It is appropriate that the Commission take into account the public interest in making the orders sought as well. The applicant's business serves an important role in the community within which it operates namely the Newcastle and Hunter Regions. Some of the roles occupied by the respondents are specialised and not easy to backfill. By making these orders, they will be in a position to return their operations to normal as and when the demand for the Newcastle Airport returns to normal levels. If the orders are not made, the ongoing viability of the operation is highly precarious and the employees may have no job at all.
Having considered these matters, I have decided to exercise the Commission's discretion to make the orders sought by the applicant. In doing so, I note that I am satisfied that the making of the order is consistent with the objective of the Act, namely, that is just and fair and will promote efficiency and productivity in the economy to the State. I note also that these orders contain a number of important protective measures that will benefit the respondents.