Statutory entitlement to standing down employees
As State and Federal Governments move to non essential business Shut-Downs as a result of the Coronavirus in coming days, many employers will be significantly impacted and as a result, may have, or may be required, to stand down an employee. The Fair Work Act 2009 (Cth) (the “Act”) allows an employer to “stand down an employee during a period in which the employee cannot usefully be employed because of … a stoppage of work for any cause for which the employer cannot reasonably be held responsible”. The Coronavirus pandemic, would qualify to allow a business to stand down its employees.
Employers may not be required to pay employees for the stand down period
Where an employer experiences a stoppage of work and stands down employees, an employer is not required to make payments to those employees for the period of the stand down. However, the provisions of an enterprise agreement or employment contract containing provisions concerning stand downs during a work stoppage will apply should the agreements exist and provide for these provisions.
Employees may take paid or unpaid leave entitlements during the stand down period
Given that most employers will not be required to make payments to employees during a stand down period, employees (other than casuals) may seek, and are entitled to take, accrued paid annual leave by agreement with their employer during this period.
Should an employee not have sufficient annual leave accrued to cover the period of the stand down, employers may consider offering or agreeing to provide those employees with annual leave in advance. However, there is no obligation for employers to offer or provide annual leave in advance during a stand down period.
Guidelines on various workplace scenarios can be found on the Fair Work website here https://www.fairwork.gov.au/about-us/news-and-media-releases/website-news/coronavirus-and-australian-workplace-laws#stay-home-precaution
Comments