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What To Do When You’re Returning From Stand Down

Published May 13, 2020 (last updated November 11, 2020) Author: Employsure
Hospitality Worker Returning From Stand Down

As the economy recovers and business are set to open again, businesses may wish to ask any employees they stood down to return to work.

However, having your staff return from stand down is not as simple as flicking a switch. Workplace relations in Australia is rarely easy.

A quick reminder before we begin:

When referring to stand down, we are referring to the ‘normal’ unpaid stand down provisions under  the Fair Work Act, which are distinct from JobKeeper enabling directions.

Returning To Work After COVID-19

If there is no longer a stoppage of work (eg the government is allowing your business to reopen), a stand down is no longer permitted under the normal stand down provisions in the Fair Work Act and therefore the employee must return to work regardless whether there is work or them to perform or not.

To bring the employee back to work, you should notify them that the stand down period has ended and they are required to return to work. We recommend you confirm this in writing. Note: before the employee returns to the workplace, you must ensure that it is safe for them to do so.

Despite the stoppage of work ending, you may be in a position where you do not have enough work for your employee due to the impact of COVID-19 (for example, you have a significant downturn in customer volumes and only require 2 staff members to be available). You have a number of options including coming to a mutual agreement for the employee to take annual leave or long service leave if applicable or mutually agree to change from full-time to part time. For more information on the requirements to action any of these options or explore other options not listed here, contact the Advice Team.  

We have highlighted five key considerations to make when returning employees to the workplace.

Assess Your Business Operations To Determine How Employees Can Return To Your Workplace

Through this review you may find that you don’t have enough work for all of your employees, or enough work for some employees but not for all.First, figure out how much work you have for employees to perform and most importantly, if they can perform that work safely. Ensure that you make the workplace safe for your employees by putting safety measures in place, ensure that you have the correct safety equipment in adequate numbers and provide training. Through this review you may find that you don’t have enough work for all of your employees, or enough work for some employees but not for all.

What Are My Options If Don’t Have Enough Work For My Employees To Perform?

Despite the stoppage of work ending, you may be in a position where you do not have enough work for your employee due to the impact of COVID-19 (for example, you have a significant downturn in customer volumes). There are few options available to you if you find yourself with not enough work for your employees. 

Reduce Hours

You can talk with your full-time or part-time employee to see if they are open to reducing their hours as you cannot do so without their consent. If they agree you must confirm the change in writing. Ensure that you review the Award prior to having this conversation as many awards contain consultation requirements.

Employers can potentially apply to the next round of Jobkeeper if they are eligible. If they are approved, this will give the employer the ability to give JobKeeper enabling directions to reduce their employees hours subject to certain criteria.

Request Leave to Be Taken

Another option is to ask employees to agree to annual leave, long service leave or unpaid leave, or a combination. The employee must agree to taking the leave as you cannot enforce this without their consent and you should confirm this in writing.  

You may be able to direct your employee to take accrued leave if they have excessive leave accruals. However, you will need to check the relevant award to confirm what excessive accruals means as it may differ. In some Awards 6 weeks is considered to be excessive and others 8 weeks.

Redundancy

The last option which most employers are trying very hard to avoid is redundancy. Redundancy can be an expensive option to take, and it has strict conditions that must be met. However, if you feel that you must make redundancies, Employsure recommends you discuss this option with a workplace relations expert before going through with it.

How Can I Reduce an Employee’s Hours?

For any employees in your workplace who have access to unfair dismissal, or have their hours of work guaranteed in a contract of employment, it is not recommended that you change the employees working hours without their consent or without following a lawful consultation process as outlined in the relevant award.

Some employees, e.g. genuine casuals, you may have more flexibility (please be careful and seek advice before changing casual employees’ hours).

See above for more detail and get in contact with the Advice Team for specific advice.

As the next round of JobKeeper is soon to commence, employers who previously did not meet the eligibility criteria but have experienced further downturn, may wish to apply. If successful, they will be able to access JobKeeper enabling directions which may allow for a reduction of hours subject to certain criteria.

Meet Your Health And Safety Obligations

Safe Work Australia and the federal government have recognised that Employers duty of care will extend to taking all reasonable steps to protect their employees from contracting Covid-19 whilst at work.

You will now have to incorporate health directions, like social distancing, into your workplace. You will not only have to consider your staff but also customers, contractors and other visitors to your workplace.

On top of that, you may also have to apply WHS guidelines provided on an industry-basis, by SafeWork Australia. There may also be further restrictions and provisions imposed on you by your applicable state or territory Government.

To assist employers get adapt to post-Covid life, Employsure has pooled together a few materials that employers can download for free and place around their business.

If you would like assistance to make your workplace ready to return post-Covid, enquire about Employsure’s Workplace Ready offering.

Notify The Stood Down Employee In Writing

As soon as there is no longer a stoppage of work, you should communicate to your employees that your business will be resuming, we recommend notifying employees in writing to avoid any misunderstandings.

If the employee’s terms and conditions of employment have changed or need to change, Employsure recommends you get in touch with a workplace relations expert for specific advice and documentation.

About Employsure

Employsure is Australia’s largest workplace relations specialists. We take the complexity out of workplace laws to help small business employers protect their business and their people.

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Frequently Asked Questions

  • What Does It Mean To Be Stood Down?

    Stand down as defined under the Fair Work Act 2009, the Fair Work Act enables employers to stand down employees in 2 ways, using:

    • the general Fair Work Act stand down provisions, or
    • the temporary JobKeeper enabling stand down directions.

    This article is about the former general unpaid stand downs.

    An employer may stand down an employee during a period in which the employee cannot usefully be employed because of a number of circumstances including:

    • industrial action (other than industrial action organised or engaged in by the employer)
    • a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown, or
    • a stoppage of work for any cause for which the employer cannot reasonably be held responsible.

    This period away from the workplace is not paid but still counts towards length of service.  

  • Can an Employer Stand Down Employees Due to Coronavirus?

    The answer to this depends on the impact COVID-19 is having on the business.

    If the Government has specifically announced that your industry or business type must shut down, then this is a direction you must comply with and is outside of your control. In this instance, you can stand down your employees under the Fair Work Act. It is recommended to get advice prior to initiating stand down.

    If you are operating but you have less customers due to COVID-19 or due to social distancing rules, this does not satisfy the stand down criteria and it would be unlawful if actioned.

    If you want to confirm if stand down applies to you and your specific circumstances, contact an employment specialist.

  • How Long Can an Employee Be Stood Down?

    There is no minimum or maximum timeframe. However, the stand down timeframe must be reasonable and cannot be for an indefinite period of time.

  • What Return To Work Procedures Would Need To Be Implemented?

    It is important that you take the below steps prior to the stoppage of work ending to set your business up for success.

    1  Assess your business operations to determine how employees can return to your workplace.

    • Will you have enough work for the employees to perform?
    • Can the employees perform the work safely?

    2 If you don’t have enough work for employees to perform, consider your options.

    • Reduction in hours
    • Change in duties
    • Change in location
    • Employees to take annual leave, long service leave or unpaid leave, or a combination
    • Redundancy

    3 If the employee’s terms of employment need to be varied for their return, consult with the employee regarding the changes and document this in writing.

    4 Meet your health and safety obligations.

    5 Notify the stood down employee in writing as soon as there is no longer a stoppage of work.

    For further information please read our free Reopening Your Workplace guide.

  • Can I Force An Employee To Take Annual Leave?

    Employers may be able to direct their employee to take annual leave only in the circumstance that it is allowed under the Award and the leave accruals meet the definition of “excessive leave accruals”. This may differ depending on the award (eg 8 weeks or 10 weeks leave accrued). If the Award allows and the employee has excessive leave accruals, you must not require the employee to take so much annual leave that the employee’s annual leave balance falls below two weeks.

    We recommend that you check the award to ensure you follow any required consultation requirements.

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