The Stage 4 restrictions are going to allow many employers to stand down their employees for a number of different reasons. However, under the Fair Work Act, It’s important to make sure that the employer is able to prove that the employee ‘cannot be usefully employed’. Additionally, employers need to check their contracts and enterprise agreement to see if there are any existing stand down conditions. Contact our HR experts for questions in relation to standing down an employee.

The Fair Work Act allows an employer to stand its employees down when:

• there is a stoppage of work;
• the employer cannot reasonable be held to be accountable for the stoppage;
• the employee(s) cannot be usefully employed by the employer; and
• the reason the employee(s) cannot be usefully employed is because of the stoppage.

Our HR advisors have  collated a list of FAQs for you to go through. These are some common questions that our clients have asked in relation to standing down their employees.

1) What category do we fall in? What options do we have? 

• Closed No onsite work, no exemptions 
• Restricted Open Industry specific with permit and exemptions in place 
• Opened Open with a covid safe plan and a permit 

2) How do I give direction to a staff member before standing staff down 

You can immediately notify staff of the stand down direction, however it is in the best interest in the business and employee to agree to the shorter time frame. Under the Fair Work requirements, the business needs to notify employees in writing at least 3 days before, unless mutually agreed. 

Its important to document the meeting through meeting minutes, and consult the employee about the processes and have a written letter to confirm the stand down. (Keyba can provide a document). 

 3) Do I continue paying JobKeeper on Stand Down? 

If your business is eligible for JobKeeper and the employee is stood down or enabling stand down direction, the business has to pay the employee $1500 (before tax) per fortnight amount. For example, if an employee is normally paid less than $1500 (before tax) per fortnight, they are still entitled to the JobKeeper amount less tax. 

 4) Can I direct staff to take annual leave? 

No. Employers can’t ask their staff to use up their leave entitlements. Unless the staff member provides written request to take leave, they would need to follow the correct leave process. An employer and employee need to agree to use annual leave. 

 5) Can a staff member request to take annual leave during stand down? 

Yes. As long as a leave application has been approved. Under the Fair Work Act, the employer cannot reasonability refuse a leave request. 

  6) Do leave entitlements accrue during stand down? 

Whether you are receiving JobKeeper or not, the leave accruals to a staff members entitlements will continue to accrue. 

  7) Do I have a right to contact the team while on stand down? 

It is a good idea to keep the lines of communication open to check on the staff’s health and well being. 

  8) Does stand down contribute to continuous service? 

Yes it does. Even though it is unpaid, it is considered as unauthorised unpaid leave / stand down, therefore it contributes to the continuous service. 

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