Businesses are no longer able to rely upon JobKeeper to keep their businesses and staff afloat and are left wondering whether or not it is lawful to stand staff down without pay.

 

Can I stand a worker down without pay?

If your business has been forced to close because of an enforceable government direction (which means the employee cannot be usefully employed, even from another location) you can stand an employee down without pay under the Fair Work Act 2009 (Cth) (‘FW Act’) on the basis that there is a stoppage of work which the business cannot be held reasonably responsible for.

 

What to consider before standing down employees

Prior to making a decision to stand down employees without pay, businesses should consider all available options including:

  1. Working from home arrangements and whether or not such arrangements are suitable depending on the nature of the employee’s work;
  2. Temporary change to duties, hours or rosters with reference to relevant legislation (including Awards and Enterprise Agreements), agreements and policies;
  3. Offering employees the option of paid leave including accrued annual leave (at half pay), long service leave, paid leave under an applicable award, enterprise agreement or employment agreement;
  4. Directing an employee to take accrued annual leave in certain circumstances as permitted by law; and
  5. Taking any other paid leave by agreement with the employee (i.e annual leave in advance).

 

Does an employee have a right to be paid personal leave?

Employees who are stood down without pay by their employer under the FW Act cannot use paid sick and carer’s leave or compassionate leave during the stand down.

 

Please do not hesitate to contact our employment team (Simon Abraham, Amy La Verde, Bianca Mazzarella or Madeline Hearn) if your business needs further guidance or support in relation to standing down employees during this lock down.