A stand down of an employee occurs when they are told to cease work activities and go home. During the stand down period there is no expectation of work and no right to wages.

When can an employee be stood down?

Under the Fair Work Act 2009 (Cth) an employer can stand down an employee in circumstances where the employee cannot be ‘usefully employed’. The Act gives three specific instances of when an employee may not be able to be usefully employed.

  1. During a period of industrial action, i.e. during a strike.
  2. When there is a breakdown of machinery or equipment, in circumstances where the employer cannot be held responsible for the breakdown.
  3. For any cause warranting a stoppage in work activities that is outside the employer’s control, i.e. due to a flood, natural disaster, loss of power etc.

Usefully employed

Just because there is a strike, a breakdown of machinery or an occurrence that disrupts the normal flow and pace of work activity, does not mean that an employee cannot be usefully employed. In fact, it is quite possible for an employee to be put to good use during such times. As such, before one of the aforementioned scenarios can confer upon an employer the right to stand down a worker, the employer must first show that there is no use to which the employee may be put.

In determining whether or not an employee can be usefully employed, the case of Re Carpenters and Joiners Award (1971) 17 FLR 330 lays down certain legal principles. In particular the case establishes that:

  1. A worker will be capable of being usefully employed if they can undertake work activities which are within the terms of their employment contract, even if the work is not of the type that the employee usually engages in.
  2. If there is work for some but not all of the employees, the employer cannot validly stand down the entire workforce. If, however, electing only some of the employees to work would cause an industrial dispute, then all workers may be stood down.
  3. If the utilisation of some employees during a proposed stand-down period will result in a reduced workload when normal work activities are resumed, so be it.

When can an employee not be stood down?

An employer cannot stand down a worker for the reasons identified in the Fair Work Act 2009 (Cth) – if the employee is bound by an enterprise agreement or contract of employment and the agreement includes its own stand-down provisions. In such a case, strict adherence to the term of the document takes precedence over the legislative stand-down provisions.

Remedies available to a worker who has been unlawfully stood down

The burden of establishing that a stand-down provision has been lawfully exercised rests with the employer. As such, it is important that the right is exercised with care and caution. An employee who has been unlawfully stood down may:

  • sue the employer for a breach of contract;
  • seek injunctive relief;
  • seek declaratory relief; and
  • seek the recovery of wages lost during the stand-down period.

Conclusion

Would you like to know more about the stand down provisions found under the Fair Work Act 2009 (Cth), under an employment contract or your rights and responsibilities concerning the same? Our dedicated and specialist team of LegalVision lawyers would be happy to assist you with any queries that you may have.

Vanja Simic

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