The facts

During May 2020, Peninsula Grammar in Mt Eliza moved to stand down dozens of its staff, telling them it could no longer afford to employ many of them in the face of a likely drop in enrolments. Principal, Stuart Johnston, wrote to staff advising that financial pressures related to the coronavirus lockdown meant it had to reduce costs, especially given the school’s large international student cohort (many of whom have departed).

The school’s decision to stand down staff in response to expectations that enrolments would fall by more than 10% resulted in approximately 27 non-teaching staff becoming redundant. This action was opposed by the Independent Education Union which filed an application with the Fair Work Commission.

The Union accused Peninsula Grammar of attempting to stand down staff unlawfully, as there had not been a genuine stoppage of work at the school.

The union’s Victorian and Tasmanian branch secretary Ms Deb James argued that “There is legitimate work for all staff to be undertaking, both during this period of remote learning and once students return to campus.”

The school agreed during conciliation to extend its consultation period for redundancies until May 29.

Peninsula Grammar moved to stand down staff just three weeks after Independent Schools Victoria (the peak body for independent schools in Victoria) and the Union struck a deal to reduce the number of staff being stood down due to the COVID-19 pandemic.  Under the deal, non-teaching staff such as cleaners, canteen staff, groundskeepers and bus drivers could have their hours and pay reduced by up to 25 per cent.

The decision

Commissioner Bissett found that the school did not have a statutory right to stand down employees because there had not been a stoppage of work.  She said the school continued to operate remotely and a reduction of work for affected staff did not constitute a stoppage of work.

The Commissioner stated that standing a worker down was “not a decision to be taken lightly and is not one to be taken solely to resolve a financial strain on the employer”.  She also asserted that employers have a high threshold to meet to successfully argue that an employee can be stood down under section 524 of the Fair Work Act (2009).

The school was not eligible for JobKeeper, however stood down staff could apply for JobSeeker payments.  Peninsula Grammar has been ordered to reinstate the staff who were stood down, with the Fair Work Commission finding the school had no authority to invoke a stand down due to the return of remote learning.

What happens next ?

Peninsula Grammar is appealing the decision, which would see the return of three workers who were ordered to stop work following stage four lockdown in August because there were no “useful” tasks for them to do.

The staff in question include classroom assistants and library workers.  Although the school stood down a total 27 staff on the return to remote learning — the order is understood to only apply to the three people who brought the application before the Commission, despite all of the 27 being stood down on similar grounds.