Being stood down from your job can be upsetting and confusing if its something you haven’t faced before. This has been a topic of discussion during Covid as some people have been stood down because of it, so I thought it would be quite timely to discuss it.
What does it mean?
Simply put, being stood down means you stop working and you’re not paid, but you’re still employed by the business and have entitlements. Under the Fair Work Act, employers aren’t required to pay employees who are stood down. Under most modern awards or enterprise agreements (these are legal documents that outline pay and employment conditions), employers are required to consult with their employees about “major workplace changes”.
There are specific circumstances that make a stand down legal. One of those circumstances is if you can’t be “usefully employed” because of a stoppage of work that the employer can’t reasonably be held responsible for. Those circumstances might include things like a natural disaster or the Covid-19 pandemic. Businesses affected by government Covid restrictions, particularly where there is a stay-at-home direction, may be able to lawfully stand down employees without pay. But they can’t stand down employees simply because the business is not doing as well as it was before.
If you have been stood down, you should also check your modern award or enterprise agreement as these documents may contain specific provisions which overrule the general ones set out in the Fair Work Act.
What does “usefully employed” mean, and why is that important?
What it means is that if your employer gains some benefit or value from the work that you do, you’re considered usefully employed and you cannot be lawfully stood down from your role. So, if there is useful work for you in the business that you can reasonably be expected to perform-for example, in a different department such as online rather than shop floor.
However, if you can’t be usefully employed because of a stoppage of work for which the employer cannot be held reasonably responsible, a stand down is legal. Your employer will need to consider whether there are any alternative duties you can perform. If a business is shutting down, however, that’s unlikely to be possible.
When is a “stand down” legitimate?
A stand down might be lawful if an enforceable government direction is in place, such as Covid-19 stay at home restrictions. For example, a furniture store without an online presence will be required to be closed, and therefore shop floor staff could be lawfully stood down for the period of the government direction.
What are your rights during a stand down?
Being stood down will affect some of your rights-while others remain untouched. Remember that being stood down doesn’t mean that your role is redundant. You’re still employed, but your employer is not required to pay your normal salary during the stand down. Check your contract, modern award, or enterprise agreement. Some modern awards include specific provisions relating to leave during the Covid pandemic, including the ability to take extended annual leave at reduced pay.
Sick leave and carer’s leave: You cannot access paid sick leave or carers leave during a period of lawful stand down.
Annual leave and long service leave: You can access annual leave and long service leave with agreement from your employer.
Resigning: If you want to, you are still able to resign from your job during a stand down. Your employer must pay out the accumulated annual leave that you haven’t already taken, as well as your long service leave because your employment is ending.
Dismissal: If your employer seeks to dismiss you during a lawful stand down period, this may be a redundancy, and you need to seek legal advice.
What if the situation that led to the stand down changes?
Importantly, if the stoppage of work event that triggered the stand down ends, your employer can’t legally keep you stood down. If the stand down is maintained, seek legal advice.
How to get help:
Being stood down can be unsettling, particularly if you’re unsure about your specific situation. Remember (before fully freaking out😊) that a stand down is usually a temporary measure where you can expect to return to work. It is hard to stay on top of changing rules and restrictions so if you have any questions or think your employer might have breached the rules or need some personal advice about your situation there is help available. Contact Fair Work Australia for more info or call your union (if you’re a member) or seek legal advice from a specialist in employment law.