Employers may be able to stand down employees under the relevant legislation such as the Fair Work Act 2009 or under an applicable Award, Enterprise Agreement or Employment Contract.
Regarding COVID-19 this can include where:
There is an enforceable government direction that prevents an employee from working; or
Where there is a stoppage of work for any cause for which the employer cannot reasonably be held responsible (Section 524 of the Fair Work Act 2009). In this case the employer must be able to show that there is a stoppage of work, the employee can’t be usefully employed because of the stoppage and the cause of the stoppage must be one that the employer cannot reasonably be held responsible for.
Before standing down an employee, the employer must have considered all other options such as working from home, a change to duties, hours of work or rosters or any other way that the employee can undertake the work.
The Fair Work Ombudsman uses the following examples of when employers may be able to stand down Employees:
if an enforceable government direction required the business to close (which means the employee can't be usefully employed, even from another location)
if a large proportion of the workforce was required to self-quarantine and the remaining employees/workforce can't be usefully employed
if there was a stoppage of work due to a lack of supply for which the employer can't be held responsible.
Generally, if an employee is stood down, they are also able to agree to take any accrued annual leave or long service leave (if applicable) during this period, otherwise the stand down time will be unpaid. Again, we encourage you to also check the applicable Award, Enterprise Agreement or Employment Contract regarding any other form of paid leave.
Employees who are stood down are still entitled to be paid for any public holidays that fall during the stand down period, continue to accrue leave and the time also continues to count towards an employee’s service. TCCI COVID-19 Business Advice
The TCCI has been funded by the Tasmanian Government to provide free support and advice to any Tasmanian business with workplace related enquiries relating to COVID-19. Businesses can access up to one hour of free workplace relations advice. To access this service send us an email on hr@tcci.com.au
Business Tasmania
Business Tasmania is a Tasmanian Government service which supports anyone starting or operating a business in Tasmania.
Their website, www.business.tas.gov.au is written in plain English and packed with tools and information on starting up and growing your business.
