What Rights Do You Have If You’ve Been Stood Down?
Have you recently been stood down by your employer? Find out key information including what a stand down means and how it will affect you.
The current COVID-19 crisis has caused massive repercussions in almost all industries and areas of employment. One effect of the pandemic has been the large amount of workers who have been stood down – a flow on effect from the loss in revenue that many businesses couldn’t predict.
What does it mean to be stood down?
Being stood down does not mean that you have been dismissed from work permanently or made redundant. When an employer stands down employees, it is a temporary, but last resort measure, taken for only a few specific reasons. The most common would be that there is no available work for the employee due to no fault of the employer. That means that employees may be stood down in cases of natural disaster or a global health crisis. Employees cannot be stood down just because business is quiet or underperforming.
Occasionally the term ‘shut down’ is used interchangeably with a ‘stand down’. These phrases are slightly different. A ‘stand down’ means employees are out of work temporarily. However, a ‘shut down’ means that the business itself closes for a short period of time.
The general rules of a stand down
These are general rules based on federal legislation. It may be worth checking your enterprise agreement (if you have one with your employer) or your employment contract. These documents may contain information about stand downs that are specific to your workplace or industry. Your employer should also formalise the process by issuing you with a stand down notice.
For the entire length of the stand down, you will not be paid. Federal legislation allows the employer to keep a worker employed but without pay.
Employers may advise you to take leave or you may request access to leave on your own if you wish. This can provide you with some extra cashflow while looking for work or if applying for Government support. However, employers are not required to approve your request to take leave.
As explained above, being stood down does not mean you are being terminated. When an employer decides to stand down its employees, this is a good sign that it wants to retain a working relationship with workers throughout the stand down and after active employment resumes. Depending on the employer of course, a stand down usually also means that employees retain access to any special employee benefits (i.e. discounts, etc) or services (i.e. counselling services, etc).
Annual leave, long service leave and personal leave will continue to accrue during the period of your stand down. Furthermore, employees must be paid for public holidays if the date falls within the stand down time. Casuals as per normal agreements, will not have access to any of these entitlements.
Maximum length of stand down period
The law doesn’t specify the maximum period of time that an employee can be stood down. Cases that the Fair Work Ombudsman dealt with give some clarity. Where there is a legitimate lack of work, employers must only terminate employees and not stand them down. It is illegal for an employer to stand down workers outside of the specific rules set out in the Fair Work Act 2009 (Cth). If your employment has paused for an extended period of time because of a lack of work, you may be entitled to redundancy pay.
What to do next
There are several ways you can get help if you think you have been unfairy treated by your employer. The first step would be to get in touch directly with your workplace. If you can’t come to a compromise, then you can make a complaint to the Fair Work Ombudsman which will investigate your issue further. Alternatively, if your employer breached the stand down provision in your enterprise agreement or employment contract, you may also start court proceedings against your employer. If you believe you may have been unfairly stood down, get in touch with an employment lawyer today.
Adrian is a Legal Intern at Lawpath. He is currently studying a Bachelor of Laws at the University of Technology, Sydney. He is primarily interested in commercial, government and administrative law as well as the legal technology industry.