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Can employers stand down employees during a lockdown?

Can employers stand down employees during a lockdown?
The recent Covid-19 outbreak in Melbourne has placed Victoria back into lockdown again. Similar to the previous lockdowns, employees who can work from home must work from home. However, what about employees who cannot work from home? Can employers stand their employees down during lockdown? This week FUMENS will briefly discuss stand-downs during a lockdown.

01

The Fair Work Act
Pursuant to section 524 of the Fair Work Act 2009 (Cth), an employer can stand its employees down without pay where they cannot usefully be employed because of a stoppage of work for any cause for which the employer cannot reasonably be held responsible. An employer may also stand down an employee in accordance with the applicable award, workplace policy, employment contract, etc. Please note employees who are stood down without pay are still employed. Please note being stood down does not mean that your employment is being terminated.

02

Under what circumstances can an employer suspend an employee?
 If a business is closed due to a mandatory government direction, and its employees are unable to work remotely, the employer will be able to stand its employees down without pay. However, if employees can work from home or remotely, the employer will not be able to stand them down. For example:
  • In accordance with government direction, all gyms need to be closed during the lockdown. Nevertheless, most of the gym’s employees cannot work from home or remotely, as such trainers, therefore, the employer may stand them down without pay.
  • In contrast, despite not be able to have dine-in customers, a restaurant may still be open for takeaway and thus employees can still work and therefore the employer cannot stand them down.
Secondly, if an employee is required by the government to self-quarantine and the employee is unable to work remotely or from home, the employer will be able to stand the employee down without pay, unless the employee takes paid leave. Before deciding to stand down an employee, the employer must consider all of the following options:
  1. Working from home, depending on the nature of the employee’s work, the employer needs to consider the feasibility of having the employee work from home or remotely;
  2. Changing the employee’s duties or hours of work, so that the employee can continue to work;
  3. Using the employee’s paid or unpaid leave.

For Example, A factory has eight full-time employees in the manufacturing department. Five of the manufacturing department employees are required to self-quarantine for 14 days due to an outbreak. Consequently, the remaining three employees cannot operate the production line due to lack of staff. However, they can still be reassigned to the packaging department to pack and distribute products. Since these employees can still work, the employer will not be able to stand them down without pay.

03

Public holidays during suspension
Under the Fair Work Act 2009 (Cth), an employee who is stood down without pay is still entitled to be paid for public holidays that fall during the stand-down period.
For example:
 Ms Wang is a full-time employee at a gym whose primary responsibilities are selling memberships and providing customer service. She works five days a week, eight hours a day. However, due to the pandemic, the government mandates the closure of all non-essential industries, including gyms. Consequently, Ms Wang was stood down for two months without pay. There is a public holiday during the gym’s disclosure. Ms Wang will be entitled to be paid for this public holiday because she would have normally been absent from work and be paid for that day.

Tips

The COVID-19 pandemic has had a significant impact on our lives. If you are seeking any legal advice and assistance about your rights as an employee or employer during the lockdown, please feel free to consult with our experienced lawyers.Welcome to visit our website to contact us.

Disclaimer

This article is only a general guide and does not apply to readers’ individual cases. Based on the information provided, readers should not make any legal decisions without seeking professional legal advice from an Australian Legal Practitioner. Fumens Lawyers hereby declares that readers who refer to this article do not constitute a lawyer-client relationship with our firm, therefore, Fumens Lawyers will not be liable for any losses caused as a result of relying on the information contained within this article.

Fumens Lawyers

Wendy Wang

Principal

Casey Chow

Associate

Nick Zheng

Associate

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