Employer chastised for selective stand down that unfairly targeted injured worker

The Fair Work Commission has awarded minimal compensation to a Perth airport worker who successfully argued a third stand down enforced on him following conclusion of the JobKeeper wage subsidy scheme earlier this year was “selective, targeted and without legal merit”.

The part-time customer service operator (CSO) had been stood down for over a month after the JobKeeper scheme finished on March 30, and although he had been offered some work in early-May (which he failed to attend for), he ultimately resigned on 13 May 2021. The CSO could not handle luggage because of a wrist injury and was subject to a flexible work arrangement in which his availability was limited to working between 8pm and 2am but he remained insistent there was “sufficient work” available that should have been offered to him.

In hearing the stand down dispute, Commissioner Platt accepted the employer, being a global aviation ground services company, was entitled to stand down employees between March 30 and May 2, given the number of flights to service had dropped from 450 in January 2020 to an average of just over 50 per month since April 2020, but he was unable to conclude that the stand down had been applied fairly in relation to the CSO.

The employer’s own evidence was that employees who could perform a greater variety of duties and were able to service more airlines were “seen as more valuable”, meaning the employer rostered those workers to perform more shifts (including arrivals work, which the CSO was able to perform) so as to reduce the risk of those employees resigning. Commissioner Platt determined that employees, such as the CSO, who were limited in the number of airlines they could service were seen as “less valuable and given less preference for shifts”. “As a result, the [CSO] was not offered any hours at all whilst [other employees] were rostered hours up to their full compliment”, he said.

Acknowledging the CSO’s limitations (because of his wrist injury) and restricted availability (as a result of his flexibility agreement), Commissioner Platt still concluded work was available that fell within the CSO’s skills. The Commissioner conceded it was understandable the employer would seek to retain its “more valued employees” but said the decision not to provide any work to the CSO “imposed an unfair burden upon him and did not result in a fair outcome”.

If the available work had been shared more appropriately during the third stand down, Commissioner Platt determined the CSO would have been rostered to perform 20% of the hours required by his contract, awarding compensation of $547.20 (gross).

Ng v Skystar Airport Services Pty Ltd T/A Menzies Aviation [2021] FWC 3272 (30 July 2021)