The All Saints case
The Union has referred a case concerning a small independent school, All Saints Grammar School, Belmore, to the Fair Work Commission. All Saints 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.
Stand down means an employee is not paid for an indefinite period. Under the Fair Work Act, if the employer is not covered by the recent JobKeeper amendments (and most schools aren’t), stand down can only occur in very narrow circumstances, as set out in the Act. These requirements are that:
- there has been a stoppage of work
- the stoppage is not for a reason for which the school is responsible (for example, a decision to reduce staff numbers in response to changing economic circumstances); and
- the employee stood down cannot be usefully employed.
The case focused on the teacher aides and administrative staff.
The union lodged the stand down dispute with the Fair Work Commission on Friday 3 April, just a few days after the members concerned contacted us. The matter was listed 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.
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, calling 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.
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.
Our union is continuing to challenge stand downs in other states in the Fair Work Commission and 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: See here.)
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.