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A lot of businesses are under stress at the moment. Many are considering standing down workers. If you are planning to do this its important to do it lawfully. Or you could be held liable for employee claims to recover unpaid wages.

General Information To Help

Under the Fair Work Act, an employee can only be stood down without pay if they cannot be usefully employed because of a stoppage of work for any cause for which the employer cannot reasonably be held responsible.

Whether the option of standing down employees is available in circumstances relating to coronavirus is very fact dependent and an employer should exercise the option cautiously. The employer must be able to demonstrate that:

  • there is a stoppage of work
  • the employees to be stood down cannot be usefully employed (which is not limited to the work an employee usually performs)
  • the cause of the stoppage must also be one that the employer cannot reasonably be held responsible for.

If an employer unlawfully stands down employees without pay, the employees will likely be able to recover unpaid wages.

Employers cannot generally stand down employees simply because of a deterioration of business conditions or because an employee has coronavirus.

Some examples of when employers may be able to stand down employees include:

  • if there was an enforceable government direction requiring the business to close (which means there is no work at all for the employees to do, even from another location)
  • if a large proportion of the workforce was required to self-quarantine with the result that the remaining employees/workforce cannot usefully be employed
  • if there was a stoppage of work due to lack of supply for which the employer could not be held responsible.

This is not an exhaustive list.

Enterprise agreements and employment contracts can have different or extra rules about when an employer can stand down an employee without pay, for example, a requirement to notify or consult. Employers should consider whether their obligations are impacted by any applicable enterprise agreement, award, employees’ employment contracts or workplace policies.

The stand down provisions in the Fair Work Act, enterprise agreements or contracts of employment are not usually relied on for casual employees.

We recommend our clients get specific and individualised advice for their business!

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