Stand down implications for employers and employees

I have been asked many times in recent days about the legal implications of an employer standing down an employee due to the economic and other implications of the Coronavirus pandemic.

The first point to be made is that the Fair Work Act does not provide a mandate to an employer to stand down an employee or employees merely because of a downturn of work. The provisions of sec 524 of the Act need to be strictly met, which is a question of fact; see CEEEIPP v FMP Group Pty Ltd (2013) FWC 2554 and various posts I have recently published.

The second point is that the employer’s right under the Act is expressly subject to the provisions of any applicable enterprise agreement OR contract of employment.

And thirdly, whilst a stand down, if lawful under the Act, does suspend an employer’s obligations to “make payments to the employee”, it does not affect continuity of service for the purposes of accruals such as for leave.