Standing Down Employees.

On this page

Have a question?

Have a question that hasn't been answered? Fill in the form below and one of our experts will contact you back.

workplace where employees have been stood down

Under the Fair Work Act 2009 (the Act) an employer can stand an employee down without pay if the employer cannot usefully employ the employee for reasons beyond the employer’s control, as set out below.

Standing Down Employees Under The Fair Work Act 2009

An employer can tell an employee to ‘stand down’ under section 524 of the Fair Work Act 2009 (the Act), if there is no useful work for them to do for reasons beyond the Employer’s control, so in case of a machinery or equipment breakdown, industrial action, or  there is a stoppage of work caused by severe and inclement weather, for example.  The employee is still employed by the business but does not get paid for the time they are stood down. This is different from unpaid leave, which is usually initiated by the employee and only affects them personally.

An enterprise agreement, award or employment contract may have different or additional provisions that apply, such as consultation or notice requirements.

During the COVID-19 pandemic additional temporary provisions in the Act apply ie. sections 789GDC (qualifying employers) and 789GJA (legacy employers) allow stand down as part of JobKeeper amendments to the Fair Work Act, which allow the employer to give enabling directions to the employee if both the employer and employee meet certain conditions.

When Can You Legally Stand Down Employees?

If an employer unlawfully stands down employees without pay, the employer may have to back pay the employees the unpaid wages.

Stand Down Under Section 524 Of The Act

Employers can’t implement the stand down provisions under the Act simply because there is a downturn in business and they have less work for the employees. Employers can send employees home if work stops for reasons outside their control such as a machinery or equipment breakdown or industrial action, provided it is not organised by the employer, or a stoppage of work for which the employer cannot be held responsible.

For a stoppage of work an employer has to show all of the following:

  • there is a stoppage of work which occurred before the stand down
  • the employees to be stood down cannot be usefully employed in their usual or an alternative role because of the stoppage
  • the cause of the stoppage must be one for which the employer cannot reasonably be held responsible.

A stoppage of work can include severe and inclement weather, where it is unsafe or unreasonable for an employee to work because of severe weather conditions such heavy rain and storms, flooding, bushfires, extreme heat or cold, hail or high winds.

Other examples of when employers may be able to stand down employees provided the employees can’t be usefully employed are related to the COVID-19 pandemic and include enforceable government directions which require the business to close or if the business supply-chain has been interrupted and there are no viable alternatives available.

The employer should take all reasonable steps to usefully employ employees elsewhere. Employees should be given the opportunity to perform any work that is available that they are capable of doing – even if it falls outside their usual duties – before a decision is made to stand them down.  Employers will also need to consider options such as working from home or changing the employee’s location of work.

Stand Down As Part Of A Jobkeeper Enabling Direction

Employers may be able to give direction to stand down as part of the JobKeeper amendments to the Fair Work Act if they are either a qualifying employer, which is an employer who currently qualifies for JobKeeper and is receiving JobKeeper payments for their employees or a legacy employer. Legacy employers previously qualified for the JobKeeper but no longer qualify or chose not to participate from 28 September 2020.

As part of the JobKeeper enabling directions a qualifying employer can direct an eligible employee to reduce their hours of work to zero if there are changes to the business that don’t allow the employee to work their usual hours because of the COVID-19 pandemic and or government directions to slow the transmission of the virus.  Any JobKeeper enabling directions given to an employee remain in effect until rescinded or replaced by the employer, or until the JobKeeper ends on 28 March 2021.

A legacy employer must reissue JobKeeper enabling directions for each quarter the employer is eligible to employees who previously received JobKeeper payments. However, an employer cannot issue an enabling direction that results in an employee working less than 2 hours a day or reduces their hours of work to less than 60% of the ordinary hours that they were working prior to 1 March 2020.

Stand Down As Part Of A Jobkeeper Enabling Direction

Notice Period And Payment

Employees should be given as much notice as possible that they are to be stood down, even though the Act does not specify a timeframe. The employer should also provide employees with an estimated duration of the stand down period.

Under JobKeeper amendments to the Fair Work Act, qualifying employers need to notify the employee at least three days prior in writing before giving them the direction to stand down. For legacy employers they should provide at least 7 days’ written notice to an employee and the employer needs to consult with the employee (or their representative) before issuing a JobKeeper enabling stand down direction in writing. 

Pay During Stand Down

During a stand down period, an employee doesn’t need to be paid unless they are receiving JobKeeper. Employees continue to accrue entitlements (e.g. annual leave, sick leave) and as per the hours they ordinarily would have worked if they hadn’t been stood down, whether the stand down is under section 524 of the Act or a JobKeeper enabling direction.

Alternative Options to Stand Down

Stand down should be treated with caution. Employers should explore all alternative options prior to standing the employees down without pay. Employers can offer alternative duties or a different working location, possibly pursuant to a JobKeeper enabling direction if both the employer and employee are eligible.  Employers should also look at flexible working arrangements and job-sharing options and allow employees to access their annual leave or long service leave (if applicable) to cover the days where they cannot be usefully employed.

Get Workplace Advice Now

Call our team to receive free initial advice on any workplace relations topic.

About Employsure

Employsure is one of Australia’s largest workplace relations advisers to small- and medium-businesses, with over 25,000 clients. We take the complexity out of workplace legislation to help small business employers protect their business and their people.

Frequently Asked Questions

  • What Does Standing Down Mean?

    Stand down is when the employer has no useful work for their employees to do for reasons beyond the employer’s control, in which case the employer can tell the employee to stay home without pay as per provisions in the Fair Work Act 2009.

  • How Much Notice Does An Employer Need To Provide If Standing Down?

    The Act does not specify a timeframe, but employees should be given as much notice as possible.

    Under the JobKeeper amendments to the Fair Work Act enabling an employer to direct the employee to stand down, qualifying employers should give employees at least three days’ notice, and legacy employers should notify employees at least seven days prior.

  • Under What Circumstances Can An Employer Justify Standing Down An Employee?

    Employers can tell employees not to work if their employees can’t usefully be employed for reasons outside the employer’s control, for example:

    • an equipment breakdown
    • industrial action
    • a complete stoppage of work because of a government directed shutdown or severe and inclement weather.
  • What Does ‘Usefully Employed’ Mean?

    Employees should be given the opportunity to perform any work that is available which they are capable of doing, even if it falls outside their usual duties, before a decision is made to stand them down.

  • Does Stand Down Affect An Employee’s Entitlements?

    Employees continue to accrue entitlements (e.g. annual leave, sick leave) and as per the ordinary hours they would have worked if they hadn’t been stood down, whether the stand down is under section 524 of the Act or a JobKeeper enabling direction.

    An employee who has been stood down or has been given a JobKeeper enabling stand down direction to work less or no hours, is not entitled to use paid sick and carer’s leave for the days or hours that they’ve been directed not to work.

  • Can The Employee Look For Alternative Work If Stood Down?

    No, not without their employer’s permission, as employees are still employed during the stand down period.

  • What Qualifies As A Stoppage Of Work Under The Fair Work Act?

    A stoppage of work is when the employees have no work to do or are otherwise prevented from performing their work, cannot be usefully employed elsewhere, and the employer cannot reasonably be held responsible.

    Examples of a stoppage of work include:

    • an enforceable government direction requiring the business to close
    • if a large proportion of the workforce is required to self-quarantine and the remaining employees can’t do any useful work
    • if there is lack of supply for which the employer can’t be held responsible, and the employer can’t find alternatives.
  • What Impact Does A Stand Down Have On A Public Holiday?

    If a Public holiday falls during a stand down period, employees are entitled to be paid for the hours they normally would have worked on the day the public holiday falls on.

Have a question?

Have a question that hasn't been answered? Fill in the form below and one of our experts will contact you back.

  • This field is for validation purposes and should be left unchanged.

Call Now

1300 207 182

Live Chat

Click here