Newcastle Airport Pty Ltd v Ferguson & Ors [2020] NSWIRComm 1068

Industrial Relations Commission New South Wales Medium Neutral Citation: Newcastle Airport Pty Ltd v Ferguson & Ors [2020] NSWIRComm 1068 Hearing dates: 25 September 2020 Date of orders: 25 September 2020 Decision date: 25 September 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Webster Decision: Orders granted Catchwords: EMPLOYMENT LAW – stand down – COVID-19 – no useful work for employees – no act or omission of the applicant - seriousness of the orders sought - public interested favours discretion being exercised Legislation Cited: Industrial Relations Act 1996 (NSW) Category: Principal judgment Parties: Newcastle Airport Pty Ltd (applicant)

Respondents as contained in Schedule 1 to the decision Representation: Counsel:

Mr Boncardo (for the intervener TWU and respondent, Mr Cosgayon)

Ms Anthony (for the intervener APESMA and respondents, Mr Eastcott and Mr Lucknow)

Solicitors: Sparke Helmore (for the applicant) File Number(s): 2020/00259722 Publication restriction: Nil

ex tempore decision 1. 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. 2. The respondents to these proceedings are 59 employees of the applicant. 3. 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. 4. The Commission made orders for substituted service with respect to the respondents in chambers on 10 September 2020. 5. 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. 6. 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. 1. 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. 2. 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. 3. 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.