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Stand Downs & Forced Leave

During difficult times and events – like the recent bushfires or coronavirus pandemic – you may find it difficult to continue to employ your team, as external events force you to make tough decisions.

As I write this, Virgin Australia has just announced it is ‘standing down’ 8,000 workers. But what actually does this mean? When are you as an employer entitled to stand down your team, and what are your legal obligations?

As a mediator, specialising in employment law, I work with both employees and employers to resolve workplace issues and conflict. With the current global crisis that we are currently living in with the spread of COVID-19, many people and organisations all over the country are experiencing immense difficulty - our companies are at stake and our jobs are at risk.

We are here to help you navigate this tough time.

To help you understand Stand Downs & Forced Leave, I’ve pulled together this guide to help you with some of the key questions you may have on this topic.

Firstly, what is a stand down?

This, to me, is the worst case scenario for a business, and I’d advise employers to explore other options. It means a member of staff is told to no longer carry out their work, for no pay, when there is no longer a job for them. An employer must be able to demonstrate that there is a stoppage of work – in the case of Qantas and Virgin Australia, this is not in dispute because with virtually no planes flying, there is no need for a team.

Being stood down feels very much like unpaid leave (although it isn’t), since you remain employed, but without work or income.

The Fair Work Act 2009 allows employers to stand down employees without pay when the employee cannot be usefully employed because of a stoppage of work, which the employer cannot be reasonably held responsible for (such as natural disasters).

When can you stand down an employee under the Fair Work Act?

Only in the most extreme circumstances – you can’t simply tell your team to not turn up and not pay them if the company is going through a rough patch and you want to make some immediate cuts.

Under the Fair Work Act, any employee (whether full-time, part-time or casual) can be stood down without pay if they can't do useful work because of an "equipment breakdown, industrial action or a stoppage of work for which the employer can't reasonably be held responsible".

In the current situation, given organisations are following a government directive to stop their services (particularly in the travel and hospitality sectors), and an employer is effectively being forced to no longer deliver its core offering, it is able to stand its team down.

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