Posted on October 22, 2020
With the impact of the Covid-19 pandemic, many businesses and employees alike have inquired about the stand down provisions of the Fair Work Act 2009 (Cth) (the Fair Work Act) this year.
However, the existence of the pandemic alone is unlikely to be enough for an employee to be stood down and it is important that a proper consideration of all of the circumstances be completed prior to standing down an employee.
The reasons for which an employer may stand down an employee or employees are outlined at s 524 of the Fair Work Act. The reasons include where an employee cannot usefully be employed because of:
- industrial action;
- a breakdown of machinery or equipment for which the employer cannot reasonably be held responsible; or
- a stoppage of work for which the employer cannot reasonably be held responsible.
A recent decision of the Fair Work Commission in Independent Education Union of Australia v The Peninsula School t/a Peninsula Grammar School C2020/6311 [2020] FWC 5180 confirmed that classroom assistants and library technicians could not be stood down in accordance with s 524 of the Fair Work Act merely because onsite education at the school had stopped.
There were various factors that contributed to the decision that the stand down was not valid including:
- there had not been a ‘stoppage of work’ within the meaning of the Fair Work Act as remote or online education continued;
- a fellow librarian/teacher had not been stood down; and
- the employees’ responsibilities were not necessarily tied to the physical space they worked in.
The Fair Work Commission confirmed that the decision to stand down an employee is not a decision to be taken lightly and further, that it should not be a decision made merely to resolve a financial strain on the employer.
It is important that employers understand that a ‘stoppage of work’ is a high bar for an employer to meet. Employers should consider whether their circumstances would be considered a stoppage of work for which they cannot reasonably be held responsible. Factors to consider include whether there is other work that the employee could be ‘usefully employed’ to do instead. This is not limited to tasks which the employee would usually complete. It is also important that stand downs not be applied disparately across similar employees.
If you would like advice in relation to your particular circumstances as an employee or employer, please do not hesitate to contact our office on (03) 9853 0311 or [email protected].
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The content of our news articles are provided for information purposes only and do not constitute legal advice. We recommend that you seek professional legal advice for your specific circumstances.
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