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Union wins on stand downs

Union win on support staff stand down dispute

From the IEU NSW/ACT branch
28 April 2020

After taking a stand down dispute to the Fair Work Commission in early April, on behalf of support staff at All Saints Grammar at Belmore, the IEU has managed to secure a major win on behalf of our members. After a number of days of hearings, and just before school was due to go back for Term 2, the school has backed down on their decision and withdrawn the stand downs. The employees will now receive back pay for the period of the stand downs and will have ongoing work.

The All Saints Case

On 3 April 2020, the IEU took a stand down dispute to the Fair Work Commission – relating to support staff at All Saints Grammar at Belmore. All Saints, without prior notice or consultation with staff or the union, stood down eight teacher aides, two administrative staff and bus drivers on 31 March 2020, shortly before the school holidays. The employees were not paid from that date and did not receive pay for the school holidays nor the public holidays over Easter.

The stand down of staff was proposed to continue indefinitely, until all students resume onsite learning. During this period, the school has continued to receive parent fees and government funding.

As members are aware, as a result of the COVID-19 response measures taken by state and federal governments, a large proportion of students had begun learning remotely. This is the basis on which All Saints Grammar justified the stand down. However, as the union has repeatedly asserted, both publicly and in negotiations, schools operating remotely are still open and some students have continued to attend in person.

The school lodged a statement by the school principal, who argued there was no work for the teacher aides nor the relevant administrative staff when the school was providing online learning.

The union strongly contested this, and has consistently asserted that school support staff can, and in fact should, remain usefully employed. We called witness evidence about the types of duties teacher aides were performing in other schools and that the teacher aides and administrative staff at All Saints could perform.

We also argued that there was no stoppage of work (teaching and learning were continuing) and that the decision was taken by the school for economic reasons, to reduce costs, rather than being a stoppage caused by factors outside the control of the school, such as a fire or flood or machinery breakdown.

The matter was listed by the Commission for conciliation on Monday 6 April and set down for hearing on Friday 17 April and Monday 20 April, during the school holidays. Both sides were represented by barristers in the proceedings, because the matter was seen as a test case that could potentially determine a precedent.

The outcome

In a major win for members, five days after the main hearing had concluded and just before school was due to go back for Term 2, the school changed its mind and decided to withdraw the stand downs. The employees will now receive back pay for the period of the stand downs and will have ongoing work.

Implications for other schools

Even though the matter was resolved without a decision of the Fair Work Commission, it was clear in the proceedings that for a stand down to be effective the school must carefully consider whether other useful work is available for each employee. This is not an easy hurdle, nor is it clear that the Commission would have held that there had been a stoppage of work.

The IEUA is committed to continuing to challenge stand downs in all states in the Fair Work Commission, and we will challenge stand downs in other NSW independent schools on a case by case basis.

(Note, however, that separate rules apply to employees stood down under the JobKeeper allowance.)

In NSW there have only been a small number of schools that have sought to stand down staff. In some cases only very specific classifications have been affected – such as boarding house staff, aquatic centre staff, sports coaches, etc. However, there are a number of independent schools, where stand downs have been more extensive. A number of these schools have provided ex gratia leave to staff who have been stood down.

Members in early learning centres have also been affected because of the very significant reduction in attendance experienced by centres.

Other reductions in hours

Some schools have sought to reduce employees’ hours rather than stand them down. Again, there are limited circumstances in which a school or early learning centre has the unilateral right to do this, particularly if the employer is not a JobKeeper employer. Members should immediately contact the union if they have been asked to agree to reduced hours and do not wish to agree.