COVID-19 Pandemic – Standing Down Employees

With the continuing impacts of COVID-19 many employers are asking the question of whether they are lawfully permitted to stand down their workforce.

Can an employer stand down an employee without pay?

The Fair Work Act does permit an employer to stand down an employee without pay in some circumstances. Whilst workplaces in some sectors will qualify to access these provisions it is important to seek advice before facilitating a stand down to avoid the activity being in contravention of a multitude of sections contained in the Fair Work Act.

What are the circumstances which this may apply?

Employees can only be stood down without pay if they cannot be usefully employed due to equipment break down, industrial action or a stoppage of work for which the employer cannot be held responsible.

Determining whether employees can no longer be usefully employed and able to be stood down will depend on the extent to which an employer’s trade has been restricted and the extent to which the employer could otherwise not find useful employment activity for the employee.

Stand downs due to COVID-19

COVID-19 is presenting a new test for this area of law.

Pubs, clubs and café owners are likely to be able to avail themselves of the stand down provisions due to the forced shut down that has been imposed upon their industry as a non-essential service provider.

Employers in other sectors may still be able to access the stand down provisions if work stoppages have occurred due to other intervening circumstances, for example a restriction on the importation of goods that the business may sell to the public or as a result of needing to comply with social distancing requirements may also qualify as a work stoppage outside the control of the employer.

Written by Daniel Cole, Managing Director at Beck Legal


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