Due to COVID-19 standing employees down has become necessary for some employers. Standing down employees involves the employer requiring employees not to work, due to lack of work or enforceable direction.
For a stand down to be acceptable under the Fair Work Act 2009 it must meet the following requirements:
- The employee cannot be usefully employed because of a stoppage of work
- The employer cannot be held reasonably responsible for the stoppage of work
- Any work that is performed must provide a net benefit to the employer
- The ‘qualifying employer’ is using a JobKeeper enabling stand down direction under the new temporary JobKeeper changes to the Fair Work Act
It is important to note that a mere reduction in the volume or type of work available does not justify a stand-down. A recent Fair Work Commission case heard an employee challenge his stand down because he believed he could still be usefully employed through administrative and caretaker tasks at a Coral Princess Cruises. However, the Fair Work Commission decided that “work” in this case was the purpose for which the business traded, providing cruise holidays, and therefore caretaker tasks were not considered useful employment and did not provide a net benefit to Coral Princess Cruises. The Fair Work Commission decided that this was a reasonable action for the employer to take to protect their business.
Therefore, if there is insufficient work remaining in a role and an employee cannot be usefully employed to the net benefit of the company, or if the employer is receiving JobKeeper payments the employee can be stood down.