Commission backs employer's no-pay call after union pitches cleaning and painting as useful work
A wire manufacturer's decision to stand down workers during rolling one-hour stoppages has survived a union challenge at the Fair Work Commission.
In a decision handed down on 14 May 2026, Commissioner Perica resolved the dispute in The Australian Workers' Union v InfraBuild Wire Pty Ltd [2026] FWC 1754, a case that lands squarely on the desks of HR leaders dealing with rolling protected action and stand down decisions.
The backstory is straightforward. With enterprise bargaining underway at the Geelong wire mill, the AWU notified four consecutive one-hour stoppages at the end of every night, day and afternoon shift across 27 and 28 February 2025. The pattern meant workers would work four hours, then stop for the rest of the shift. The next shift would do the same. And so on, for six shifts running.
InfraBuild responded by standing down affected wiredrawing and galvanising employees without pay, citing section 524 of the Fair Work Act and clause 28 of the enterprise agreement. The company argued the stoppages made useful employment impossible because the galvanising line could not be started, run and shut down productively within a four-hour window without producing significant scrap and wire of substandard quality.
The AWU pushed back hard. Workers, it said, could have been usefully employed cleaning, painting, training, working through outstanding safety corrective actions, running the rewinder and updating notice boards. The union also argued that clause 14.9 of the agreement, the pre-dispute status quo provision, blocked the stand down while the parties were in dispute.
Commissioner Perica disagreed on every point.
On useful employment, he applied the test from Re Carpenters and Joiners Award and Townsend v General Motors Holden: work has to deliver a net benefit to the employer's business. Four hours, he found, was not enough time to safely run the galvanising line and produce wire of merchantable quality. Risk of greater scrap, inferior quality and a narrower production window all counted as legitimate prejudice to InfraBuild. The Commissioner accepted that the company had made a "prudent and risk-averse" call in good faith, and noted that employers in this position are not held to "a standard of perfection applied with the benefit of hindsight."
Each alternative task the union proposed was knocked back. Deep cleaning had been done in November and December 2024 and again on 24 February 2025. Painting was completed in December. Training could not realistically run on the fly with the dedicated trainer on leave. Updating notice boards, on InfraBuild's evidence, was a job of less than twenty minutes for one person.
On the status quo argument, Commissioner Perica applied the Federal Court's reasoning in Qantas v ALAEA (No 3). Where a dispute is about whether useful employment exists, the stand down clause is the leading provision and the status quo clause must give way. Reading it otherwise, he said, would render the stand down right meaningless.
The cautionary thread for HR is procedural. The company's National HR Manager conceded under cross-examination that she had no direct knowledge of how the galvanising line was started or stopped, how long the process took, or how much scrap was produced. She also accepted she could have spoken to affected workers and their representatives about useful work before the stand down went ahead. Good faith carried the day here, but HR teams making these calls should document their thinking, draw on operational expertise, and be ready to explain why each proposed alternative task fails the net-benefit test.
