Based on the information provided by FairWork, this meets the requirement for employers to stand their employees down.
An employer does not have to pay an employee when either the federal or a state or territory government or officer makes an enforceable government direction that prevents an employee from working.
In these instances, the employer doesn't have to pay the employee, unless the employee takes paid leave. Whether or not the enforceable government direction prevents an employee from working will depend on the facts in each case, for more information: List of enforceable government directions during coronavirus.
Communication
Below is a checklist for standing down employees, however, we cannot emphasise enough the importance of communicating with employees at this time to address anxiety around workplace uncertainty.
Thankfully at this stage, the lockdown is only three days. Should this change, ensure you are continuously communicating with employees in order to manage the situation as it unfolds.
Standing down employees (source)
Use the checklist below to make sure all options have been considered before an employee is stood down.
1. Working from home arrangements
Alternative working arrangements such as working from home might be suitable depending on the nature of the employee's work. Employees and employers are encouraged to discuss how this could work for them.
2. Changes to duties, hours of work or rosters
Employers should talk to their employees about temporarily agreeing to change their duties, rosters or hours if this means an employee can keep working. There are different ways that employers and employees may be able to make these kinds of changes.
Employers need to check the rules under the applicable award or agreement, as well as the employee's employment contract and any relevant workplace policies. Employers will usually need to consult with their employees about these types of changes.
The Fair Work Commission has also temporarily varied some awards to increase workplace flexibility during coronavirus.
3. Accessing paid or unpaid leave
Options include:
taking accrued annual leave (including at half pay)
taking any other paid leave (such as long service leave or paid leave available under an award, enterprise agreement or employment contract)
directing employees to take accrued annual leave in certain circumstances
taking any other paid leave by agreement between the employee and the employer.
Some awards provide for 2 weeks' unpaid pandemic leave and allow employees to take twice as much annual leave at half their normal pay if their employer agrees.
Additionally, some awards have been varied to give employers and employees extra flexibility to agree on alternative working arrangements and make requests about annual leave.
In some circumstances, employees won't have access to paid leave. For example, if they're permanent but have already used all their accrued leave entitlements. In these situations, employers and employees can agree for an employee to take unpaid leave.
Leave during a stand down
Employees who are stood down without pay by their employer under the Fair Work Act can't use paid sick and carer's leave or compassionate leave during the stand down.
On 27 November 2020, the Full Federal Court of Australia confirmed that an employee who has been stood down under the Fair Work Act can’t take paid sick and carer’s leave or compassionate leave. On 21 May 2021, the High Court of Australia refused an application for special leave to appeal this decision. The information on this page remains accurate. You can read the Full Federal Court’s decision at CEPU & Anor v Qantas Airways Ltd [2020] FCAFC 205.
Employees can use other types of leave by agreement with their employer during a stand down. Examples include:
annual leave
long service leave
paid leave under an applicable award, enterprise agreement or employment contract.
The usual rules about requesting and taking leave apply. For more about pay and leave entitlements, visit Pay, leave and stand downs.
DISCLAIMER: This general information has been provided by the Tasmanian Chamber of Commerce and Industry Limited (TCCI), as part of its function to support members/clients with workplace relations support and assistance. While the TCCI makes every effort to ensure the accuracy of the information provided, the accuracy may be affected by changes to Commonwealth law and policy, or by judicial consideration or interpretation. It is likely that the information provided herein may differ in the future and therefore the TCCI recommends seeking advice on each separate occasion to reduce risks associated with outdated advice or practices. The TCCI does not give any guarantee, undertaking or warranty whatsoever in relation to the information provided, including in relation to the accuracy, completeness or currency of the information. TCCI takes no responsibility or liability for any error, loss or damage suffered or incurred by any person, company or organisation as a result of the information provided. TCCI does not provide legal advice and any general advice given is based on the information supplied to us by you at the time. Any information withheld or not disclosed to an advisor, together with any change in circumstances will affect the use of the advice provided.
