Rights of Employees and Obligations of Employers
Fair Work Australia cautions employers on standing down employees and to be aware of their ongoing obligations to employees – see extract from Fair Work website below:
Employers may be able to stand their employees down without pay during the coronavirus outbreak for a number of different reasons. These can include where:
- the business has closed because of an enforceable government direction relating to non-essential services (which means there is no work at all for employees to do even from another location)
- a large proportion of the workforce is in self-quarantine meaning the remaining employees can’t be usefully employed
- there’s a stoppage of work due to lack of supply for which the employer can’t be held responsible.
Importantly, employees can be stood down without pay under the Fair Work Act if they can’t be usefully employed because of a stoppage of work for any cause for which the employer can’t reasonably be held responsible. 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.
Enterprise agreements 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.
Employees that are stood down remain employed during the period of the stand down.
However we also note from the Fair Work website that:
“On 8 April 2020, legislation to temporarily amend the Fair Work Act to help with the implementation of the JobKeeper wage subsidy passed both Houses of Parliament. The changes don’t apply until the legislation receives Royal Assent. We’ll update this website when that happens.
The new provisions will enable employers who qualify for JobKeeper to:
- make temporary and partial stand downs in certain circumstances
- temporarily alter employees’ usual duties and locations of work in certain circumstances
- agree with their employee o
n altering an employee’s days and times of work and use of annual leave in certain circumstances.”
We strongly urge you to contact Fair Work if you have any questions or seek appropriate legal advice
We also understand that on 8 April 2020, the Fair Work Commission made determinations varying 99 awards to provide unpaid pandemic leave and greater flexibility for annual leave for employees in many awards in line with the passing of legislation for the Jobkeeper payment. The schedule provides employees with:
- 2 weeks of unpaid pandemic leave
- the ability to take twice as much annual leave at half their normal pay if their employer agrees.
- The schedule in each award applies from an employee’s first full pay period on or after 8 April 2020 until 30 June 2020. This end date can be extended by application to the Commission.
Please note Fair Work applies to employers that are constitutional corporations. This includes:
- Pty Ltd businesses that are trading or financial corporations (e.g. Smith Pty Ltd trading as Jane’s Café)
- incorporated partnerships (e.g. Smith Pty Ltd and Bob Smith trading as Jane’s Café)
- incorporated trust arrangements (e.g. Smith Pty Ltd as trustee for the Smith Family Trust trading as Jane’s Café)
- incorporated associations that are trading or financial corporations and other not-for-profit organisations that are trading or financial corporations.
Other organisations are covered by the State System or Wageline (Dept Mines, Industry Regulation and Safety). For information for State System see this link https://www.commerce.wa.gov.au/labour-relations/employment-impacted-covid-19-coronavirus
