FWC rules employer acted unfairly when it stood down a less skilled worker

An employer failed to consider fairness when it stood down an aviation worker while continuing to roster employees with higher skill levels, FWC finds.

The Fair Work Commission (FWC) has come down on the side of an employee who argued against his employer’s stand down order earlier this year. 

The employer, an airline services provider, stood down staff between 30 March and 3 May this year. It was the third round of stand downs it had initiated, after standing down other employees in 2020 and early this year.

During the most recent stand down period, the employer was able to continue operating at roughly 13 per cent capacity. It chose to continue rostering on employees who were trained to service multiple airlines, while standing down employees (such as the applicant in this case) who were only trained in one airline.

FWC Commissioner Christopher Platt agreed that the stand down was legal under section 524 of the Fair Work Act. However, Platt ruled that the employer unfairly selected those who would continue receiving shifts and those who would be stood down.

“Stand downs have been around for a long time, but we haven’t seen them on this scale before,” says Aaron Goonrey, Partner at Lander & Rogers’ Workplace Relations & Safety practice. 

“So these cases testing the legitimacy of stand downs are very interesting.”

So how should an employer assess for fairness when considering stand downs? HRM asked Goonrey to explain.

“If there is some work, then all employees need to be considered equally if they are capable of completing it.” – Aaron Goonrey, Partner at Lander & Rogers’.

Playing favourites

To understand how fairness was considered (or ignored) in this case, we first need to look at the facts around how the employer’s operating and rostering decisions were made during the third stand down phase. 

The organisation handles customer services operations for several airlines, as well as arrivals duties that include assisting wheelchair users and helping unaccompanied minors. Employees need to be trained in the operating system of an airline before they can work for them. No training is required for arrival duties. 

The employee was trained to work on one airline and in the mishandled luggage portion of the business. However, a wrist injury hindered his ability to complete the required tasks for mishandled luggage. He also had a flexible work arrangement which restricted his rostered hours to between 8.00pm and 2.00am.

The airline the employee was trained to work for only had one flight during the second and third stand down periods.

All employees were given the opportunity to upskill on different airlines during the second shutdown period. However, for unknown reasons, the employee did not complete any training. 

During the third stand down, the employer would roster staff for operating airlines and assign arrivals duties if the rostered time did not add up to at least 19 hours. Employees who could work across multiple airlines were prioritised over those considered less qualified.

According to the evidence supplied by a manager at the company, staff who could work across a variety of airlines were seen as “more valuable” and therefore rostered on more regularly to “reduce the risk of these employees resigning”.   

Retaining highly trained staff makes basic business sense. However, the Fair Work Act requires employers operate from a place of fairness and not place an undue burden on employees. 

“[The commissioner] did appreciate the employer’s challenge in this matter,” says Goonrey. 

“[However,] he said that the decision not to provide any work to the employee, while understandable, posed an unfair burden on the [employee].”

Choosing who gets stood down

In his decision, Commissioner Platt cited a 2020 case where an employer attempted to reduce the impact COVID-19 was having on the business by standing down one employee and retaining the rest. 

In that case, Deputy President Peter Anderson found that the fair approach would have been to distribute the labour among several employees, allowing them all to work, albeit in a reduced capacity. 

The 2020 decision stated: “Fairness between the parties, objectively assessed, may not displace some sense of lingering injustice felt by one or both sides.”

This means it’s up to the employer to consider what is fair for everyone in a bad situation, explains Goonrey. 

The argument could be made that it’s ‘unfair’ to take hours away from employees who have more diverse skills, but Goonrey says this wouldn’t take away from the fairness assessment.

“We don’t know why the employee in this instance didn’t take up additional training, but it doesn’t mean they shouldn’t be considered for the limited work available,” he says. 

If an employer experiences a reduction of work outside their control (e.g a pandemic) then the expectation is that the burden of that reduction will be split between employees and the employer. 

In this case, Platt determined that the employer’s actions were to the detriment of less skilled employees, such as the employee in question. In his estimate, Platt found the employee could have worked roughly 20 per cent of his pre-pandemic hours. As a result, the employee was awarded $547.20 in compensation. 

“Fairness between the parties, objectively assessed, may not displace some sense of lingering injustice felt by one or both sides.”

How to stand down fairly

When there is limited work available, Goorney says employers should ask themselves a few questions:

• Is this work something only certain employees can do?
• Are you rostering some employees more than others?
• Who are you not rostering on, and why?

“If you have a valid reason – for example, it is impossible for that employee to work – then of course you can’t roster them on,” says Goonrey. 

“But as this case shows, if there is some work, then all employees need to be considered equally if they are capable of completing it.”

Employers should also be transparent with staff who have been stood down, he adds. Communicate why certain employees are still being offered work: is it their skill set, the type of work they do, their location etc? 

With this transparency, if an employee does complain to the FWC about being stood down, you should have a documented explanation for the decision you made and why, says Goonrey.

Want to learn more about stand down orders and other confusing legal requirements? Register for AHRI’s Introduction to HR Laws short course.

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