You have been stood down without pay, is it legal for the employer then to request the unpaid employee to continue to carry out work during the standdown?

The above referred to question has been posed by a long-time listener, Paul. I extend to him my thanks for the posing of this question.

The short answer is no. That is, it is prima facie unlawful for any employer to require an employee to undertake work of any kind at any time under any circumstances and not be paid for it.

The standing down of an employee, particularly during this COVID crisis, is unfortunately commonplace. The Fair Work Ombudsman has in fact produced a template letter for employers to utilise when standing down employees due to COVID.

It provides that in some circumstances an employee may be stood down without pay by the employer because they cannot usefully be employed due to a stoppage of work for which the employer cannot reasonably be held responsible and which related to the COVID outbreak. Whether an employee cannot be usefully employed depends on the particular circumstances of each and every case. Such circumstances would include:

  • If there is an enforceable government direction requiring the employer’s business to close.
  • A large proportion of the workforce is required to self-quarantine with the result that the remaining employees cannot be usefully employed.
  • There is a stoppage of work due to a lack of supply for which the employer could not reasonably be held responsible.

If any of these conditions, and other conditions specific to the particular employment circumstances, present then an employer can lawfully stand down an employee. It should be noted that employers cannot generally stand down an employee simply because of a deterioration of business conditions or because an employee has COVID.

Fair Work notes that the best practice would be to notify the affected employee in writing if being stood down because of stoppages of work attributable to the impact of the virus.

Employers must exhaust all options before standing down an employee without pay. Such option would include working from home arrangements for the employee where possible or agreeing to make temporary changes to the employee’s duties or hours of work.

The employer must make note also of any enterprise agreement or employment contract which may have a specific provision concerning stand down. In those circumstances both parties must strictly adhere to those provisions.

When an employee is to be stood down the employer should offer the employee the opportunity of taking paid or unpaid leave. As to paid leave the employee would be entitled to draw down on any annual leave or long service leave benefits available. Alternatively, consideration should be given by the employee to the accessing of Government financial support.

Just to reiterate, an employee who has been stood down cannot be required by the employer to undertake any employment duties and not be paid for same.

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