Stand-down application refused for lack of evidence

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Stand-down application refused for lack of evidence

The AIRC has rejected a Victorian cleaning company's request to stand-down its employees during school holidays, because the employer failed to adequately illustrate the effect of continuing their employment on its bottom line.

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The AIRC has rejected a Victorian cleaning company's request to stand-down its employees during school holidays, because the employer failed to adequately illustrate the effect of continuing their employment on its bottom line.
 
Background
 
The application involved a reduction in the provisions of the Building Services (Victoria) Award 2001 by way of inserting a stand down clause for employees of Tixu Pty Ltd during school holiday periods.
 
Tixu said it had held the contract to provide cleaning services to the St. Bede's College for almost 25 years and during this period, on each occasion of a school term break, had stood its employees down without pay. 
 
In October, 2001 the employer was roped in to the Building Services (Victoria) (Interim Roping - In No. 3) Award 2001, which did not provide for stand-down of employees during school term breaks. 
 
Tixu said it did not hold any other contract where it could reasonably send employees to perform work during the school term breaks, and that the school’s management denied access to the buildings during the school term breaks to Tixu and its employees. 
 
Tixu said its employees were permanent part-timers who were provided with regular substantive employment and were provided with annual leave, sick leave and other entitlements. It said it was not intended that when the break took place that it would interrupt the calculations of any statutory entitlements, such as long service leave, annual leave or sick leave. 
 
The company said it wished to retain its previous employment arrangements to preserve the employment of long-standing employees who had accepted working in accordance with those arrangements. 
 
It contended that the granting of the application would not have any flow-on effect given that it applied to a unique situation brought about by a specific contract, with a single employer at a single location.
 
The Australian Liquor, Hospitality and Miscellaneous Workers' Union cited the principles that the Commission had established in relation to the inclusion of stand-down provisions in awards, particularly the need for exceptional and substantial reasons to exist before a stand-down provision would be inserted. This case, by comparison, did not involve any crisis across the community but rather occurred in a vacuum.
 
Findings
 
Commissioner Holmes said that when considering an application for a variation to the award which entailed a reduction in the Safety Net it was necessary for the applicant to make out its case by way of the presentation of material and/or documentary evidence which was capable of analysis. 
 
In this matter, Tixu had relied on two grounds, namely an incapacity of the company to comply with the award provisions as they currently existed, and the existence of a stand down clause in the Catering Award, which provided the relief which the company sought through its application.
 
There was also an economic imperative underlying the company’s application for a stand-down, owing to the fact that the college did not want cleaning services during holidays.
 
However, the union provided evidence that it was possible for additional work to be undertaken during school vacations as a result of negotiation between the school and the company.
 
Taking into consideration the impact of the award provisions on the viability of the company, Commissioner Holmes said he was presented with assertions without any documentary material to support those contentions. He said that while it stood to reason that the company would incur significant costs if it were forced to pay employees when it was receiving no income, the impact of that negative cash flow was in no way demonstrated to the Commission. 
 
'Without such information it is not possible for the Commission to form a view concerning the economic viability of the company and whether it is such that the insertion of the clause as sought by the [company] might be justifiable.'
 
Regarding Tixu’s contentions that the granting of the application would not involve establishing a precedent, Commissioner Holmes said it was clear that a comparable clause existed in the Catering Award. Consequently, he said, it could not be given the same weight as an arbitrated provision.
 
The Commissioner concluded that Tixu had not satisfactorily demonstrated that a reduction in the Safety Net ought to be granted. Consequently, he dismissed the application.
 
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