Employers seeking to minimise their losses associated with
industrial action should take note of a recent decision of Fair
Work Australia which clarifies the ability of an employer to stand
down employees during such a period.
Australian Manufacturing Workers Union ("AMWU") v
McCain Foods (Aust) Pty Ltd  FWA 6810
McCain Foods (Aust) Pty Ltd (McCain Foods)
operates two processing facilities comprising approximately 450
production and 50 maintenance employees.
Since May 2011, the production and maintenance employees have
been in negotiations with McCain Foods for a new enterprise
agreement. On 8 September 2011, AMWU notified McCain Foods that the
maintenance staff intended to engage in an all-day strike on 14
September 2011. This action was authorised by a protected action
ballet and was accepted to be protected industrial action.
Upon receiving this notification, the management group of McCain
Foods met to discuss what meaningful work could be conducted by the
production staff should the maintenance staff not attend for work
on 14 September.
On 14 September, all maintenance staff engaged in a 24 hour
stoppage which affected the operations of the site. Although some
activities were able to be conducted within the facilities, McCain
Foods were unable to find work for many employees who were stood
down for the day.
The AMWU subsequently applied for an order that McCain Foods
unlawfully stood down these employees.
Were the employees unlawfully stood down?
In determining this matter, Vice President Watson of Fair Work
Australia initially considered the relevant provision of the
Fair Work Act 2009(the Act)
dealing with this issue, namely subsection 524(1)(a) which provides
that an "employer may...stand down an employee during a
period in which the employee cannot usefully be employed because
Vice President Watson subsequently explored the critical phrase,
"cannot usefully be employed", by referring to
the explanatory memorandum to the Act and relevant case law. The
principles which can be drawn from these materials are as
Whether an employee cannot be usefully employed is a question
of fact depending on the circumstances.
If an employer is able to obtain some benefit or value for the
work that could be performed by an employee, then the employer
would not be able to stand down the employee.
A powerful indicator that the employee can be usefully employed
is where the employer has scheduled particular work to be performed
by the employee on the relevant day. In those circumstances, the
employer would have to establish that the work scheduled could not
be performed as a result of the disruption caused by the industrial
In applying these principles, Watson VP found that McCain Foods
took a "rational and fair approach to finding useful
work" for the production staff by conducting a management
team meeting. However, it was noted that this approach could have
been improved by consulting with staff as to the work that could be
performed. Nonetheless, Watson VP reasoned that this would not have
altered the decisions reached by management.
In conclusion, Watson VP held that the employer was entitled to
stand down the employees given that McCain Foods reasonably
"determined that some useful work could be undertaken but
other work was either of no benefit or a threat to safe and
productive operations leading to a potential raw material loss or
Lessons for Employers
The significance of this decision for employers is that it
provides an avenue to minimise costs associated with industrial
action by standing down employees where no useful work can be
performed. However, employers will need to thoroughly consider what
work can be performed by the employees and should preferably
involve staff in such discussions.
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The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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