Employee Stand down Letter

Australian employees may be "stood down" under the Fair Work Act 2009 (Commonwealth) if they cannot be usefully employed because of a stoppage of work for any cause for which the employer can’t reasonably be held responsible. Employees that are stood down remain employed during the period of the stand down, although the employer may not be required to pay them during the period of the stand down. If an employer is proposing to stand down employees, it is important that the employer makes sure there has actually been a "stoppage of work" and the employer "cannot reasonably be held responsible" for the stoppage, in accordance with the Fair Work Act. A mere downturn in work is not sufficient. For example, if the government has ordered that the employer shuts their business, this might qualify as a stoppage of work, the cause for which the employer cannot reasonably be held responsible. But if there has just been a reduction in revenue, so the employer is having to cut back on staffing costs, this may not qualify. As a result, the "stand down" provisions under the Fair Work Act might not apply, meaning that the employer might still be required to pay staff salaries/wages. Employers should exercise the option to stand down cautiously, because if they stand down their employees unlawfully, their employees may be able to recover unpaid wages, and the employer could face penalties for breaching the Fair Work Act. Further information about standing down employees is available from the Fair Work Ombudsman and from the Fair Work Commission. Enterprise agreements, awards, and employment contracts can have different or extra rules about when an employer can stand down an employee without pay, for example, a requirement to notify or consult. If in doubt as to whether or not employees can be stood down, seek legal advice.