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Under the Fair Work Act 2009, an employer can stand down an employee without pay in a number of circumstances which are outside the control of the employer, including industrial action, breakdown of machinery or equipment or stoppages of work.
A stand down can only occur if:
You cannot stand down an employee due to your business being quiet or there not being enough work.
A stoppage of work may occur due to severe weather (rain, hail, high winds, bush fire or extreme temperatures) which would make it unsafe or unreasonable to require an employee to continue to work.
An enforceable government direction preventing work on construction sites continuing is also considered a stoppage of work.
As COVID-19 continues to impact business and their employees, it is likely that some employers may need to stand down employees due to circumstances created by the pandemic. This may include:
Before taking steps to stand down an employee, employers should consider if any of the following options are available.
Is there any alternative working arrangements which would allow the employee to continue to work? This may include working from home.
Is there any alternative work which the employee would not usually do, but could do instead of their usual role rather than being stood down? This can include changes to their duties, hours of work or rosters.
Can the employee access their paid leave entitlements (annual leave, long service leave or other leave available under their Award)?
Employees can agree to receive paid leave during a stand down period, rather than going without pay. This includes annual leave, long service leave and any other paid leave under their award or employment contract.
However, sick leave, carer’s leave or compassionate leave is not available to be used during the stand down period unless the employee can make a legitimate claim for this leave i.e. because they are sick.
An employee can use their paid annual leave entitlements during a stand down period.
Until 31 December 2021, employees may elect to receive those paid entitlements at half pay which allows an employee to double their time off work.
To access annual leave and half pay entitlements, employees should submit a written request and employers should confirm this in writing.
Employers may also direct employees to take excessive accrued annual leave during a stand down period.
Until 30 June 2022, all Modern Awards provide employees with 2 weeks of unpaid pandemic leave which can be used if:
The leave must start before 30 June 2022 but can finish after this date.
The unpaid pandemic leave:
To access this leave, employees must advise their employer of their intention to take this leave and the reason why. This should be done as soon as possible, however does not need to occur before the leave has started.
You should talk to your employees as soon as possible to advise them that they will be stood down.
You should notify an employee in writing of the stand down and advise:
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Whether you're facing delays in construction, supply chain issues or other problems due to COVID-19 we can help you with the latest advice and information for managing your business during these extremely challenging times.