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Do you need to stand down employees due to COVID-19?Ekaterina Skalidis Posted 27 March 2020
There is presently a great degree of uncertainty, both for employers and employees around Australia in light of the COVID-19 virus.
As a result of the Australian government’s measures to combat the virus, a number of employers have been required to take measures including the immediate closure of their business, or for businesses still in operation to have employees working from home where possible.
This has significant implications for business throughout Australia and many of our clients are looking to see how they can either continue to operate, or for those forced to close, how their business can come out the other side once the threat of COVID-19 has passed.
Employers are looking at how they can continue to assist their employees throughout this process.
There are certain stand down provisions that apply. This allows the employer to keep the employee despite there being no work in the hope that when business resumes, their employees can return to work.
Without these provisions employers would be left with no option but to terminate and/or make redundant their valued employees.
Depending on the employer industry, provisions relating to stand down can be found:
- in Enterprise Agreements;
- if the Enterprise Agreement is silent, or the business is not covered by an Enterprise Agreement, relevant provisions may be found in the respective Awards. For example, the Building and Construction General Onsite Award has particular stand down provisions.
- If there is no Enterprise Agreement and the Award is silent s524(1)(c) of the Fair Work Act applies.
You will need to check the relevant Enterprise Agreement or Award if that has application to your business. Before an employee can be stood down, the Fair Work Act provides that the employer will need to show:
- There is a stoppage of work. Such as an enforceable government direction or significant downturn in business as a result of COVID-19 in light of the requirement to self-isolate.
- The employees to be stood down cannot be usefully employed. Consideration needs to be given as to whether there is any other work available within the scope of their own role or more broadly that could be offered to the employee.
- The cause of the stoppage must be for a reason that the employer cannot be held responsible for. This usually relates to cyclones and floods but COVID-19 will fall within this category.
If an employee is stood down, the employee may agree to take annual leave or any accrued long service leave. An employee can refuse to take annual leave or accrued long service leave during the stand down period. In circumstances where an employee does not have accrued annual leave or accrued long service leave, then the stand down period would be without pay.
Other options that an employer may consider instead of standing an employee down include:
- by agreement having the employee take paid or unpaid leave for a period;
- in limited circumstances direct the employees to take paid annual leave;
- in limited circumstances negotiating with employees to change regular rosters of hours or work;
- terminating the employment of the employee in which case a redundancy payment may be required.
If an employer does make the decision to terminate an employee’s employment, the Fair Work Act requirements remain in that notice is required to be given and employees are protected from being terminated due to discrimination or a reason that is harsh, unjust or unreasonable, or for a protected right.
It should be noted that employees who are directed to work from home are also owed a duty of care in relation to their workplace from home. We recommend that employers have their employees do an assessment of the workplace within their home to ensure it is safe. Records of the assessment should be kept and can include photographs.
Other articles by Ekaterina Skalidis
- Embracing the new reality when returning employees to the workplace
- Changes to the Restaurant Industry Award 2010 as a result of COVID-19
- Changes to the Hospitality Industry (General) Award 2010 as a result of COVID-19
- Working from Home during COVID-19
- Do you need to stand down employees due to COVID-19?