During the COVID-19 lockdowns, a small number of employers have attempted to stand down staff. Often it is in the context of the employer’s income remaining unaffected – that is, they continue to receive large operating grants from the Federal Government and their fee base remains unaffected. Of course, such an approach only alienates staff.
Can my employer stand me down simply because they want to reduce costs? The short answer is no.
An employee can only be stood down under the Fair Work Act if all of the following conditions are met:
- there must have been a stoppage of work
- the employer cannot reasonably be held responsible for the stoppage; and
- the employee cannot be usefully employed during the period of the stand down.
In the various cases that have been considered by courts and the Fair Work Commission, a stoppage of work does not mean a reduction in trade. The fact that some parents are not sending their children to a school or centre on some or all days is not a shutdown.
Where an employer decides to temporarily close a facility then this is generally a stoppage of work for which the employer is responsible and therefore the employer cannot stand employees down under the Act.
Generally, where there is some work for the employee which will either immediately or at some point provide a benefit to the school or centre, the employee is usefully employed.
The work does not necessarily have to be their usual work. If your employer is contemplating standing you down, think of all the functions and roles you could undertake that would provide a useful outcome for your school/centre and its students/children. Think of possible roles in a remote learning context.
Of course there are some cases where employers may have a right to stand down employees – for example, where a Public Health Order requires that a school or centre (or part thereof) must cease all operations.
If your school or centre is proposing to stand you down you should contact your union organiser.
Members may wish to look at the money available under the government scheme to see how it compares with the loss in wages if they are partially or totally stood down. In some cases you may actually be better off in agreeing to be stood down. Note that members do not have to take accrued annual leave, long service leave or sick leave in order to access the government payments.
If you agree to a stand down, get confirmation from your employer in writing that the stand down will count as service for the purpose of annual leave or averaging. You may also wish to ask the employer to continue their usual superannuation payments, as if you were not stood down.
Members cannot normally be directed to take annual leave because of COVID-19. In a preschool or school, leave is deemed to be taken at Christmas for almost all employees. In addition, under the Fair Work Act, annual leave must be taken by agreement.