[2025] FWC 1331
What happened
Registered nurse, the Applicant, was stood down by St Vincent’s Private Hospitals Ltd after she refused redeployment as part of protected industrial action during bargaining for a new enterprise agreement. The Applicant, a member of the Australian Nursing and Midwifery Federation (ANMF), had previously been redeployed approximately twice a week. On November 21, 2024, she received texts offering redeployment and refused, stating she wished to work her usual shift. The hospital stated there was no suitable work available and stood her down without pay. The ANMF challenged this stand down, arguing it was unlawful.
What was decided
The Fair Work Commission considered whether St Vincent’s Private Hospitals Ltd was entitled to stand down the Applicant under section 524 of the Fair Work Act 2009. The Commission needed to determine if the Applicant could not be usefully employed due to her protected industrial action. The decision is pending, as an appeal was lodged against it and a Full Bench decision was made on December 3, 2025.
What it means for employers
Employers must carefully consider whether an employee can genuinely be described as 'not usefully employed' before standing them down, especially when the reason relates to protected industrial action. Simply offering redeployment doesn't automatically justify a stand down if useful work exists in the employee's usual area.
What it means for employees
Employees engaging in protected industrial action have the right to refuse redeployment. If an employer stands an employee down due to this action, the employee can challenge the legality of the stand down by arguing that useful work was available.
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