Given the new outbreak of COVID-19 in the greater Melbourne metropolitan area and some regional areas, the Victorian government announced a 7 day return to Stage 3 lockdown restrictions starting from 11.59pm on Thursday 27 May 2021.
Stage 3 restrictions include:
- closure of pubs, bars, entertainment venues, churches and places of worship
- restricting restaurants and cafes to take‐away only
- limiting public gatherings to two people.
As a result, non-essential services will once again have to consider standing down employees that cannot work as a result of the government directions.
This is a reminder for employers of their rights and responsibilities with respect to standing down those employees, and the potential interaction with leave entitlements.
If a business is required to temporarily cease its operations due to a government direction (e.g. closure of a business, inability to adhere to social distancing requirements, etc), the employer has a right to stand down employees that cannot usefully be employed as a result – without pay.
This is because the closure is outside the control of the employer.
A related business can also stand down employees who cannot be usefully engaged (for example, a supplier to a school when the school is required to close).
What is a “stand down”?
Stand down applies where there is a stoppage of work that is beyond the control of the employer, and the employees cannot be usefully engaged. Where possible employers should deploy staff to other meaningful duties instead of standing them down (including working from home if possible).
Stand downs are generally unpaid. However, employees may elect to take annual leave (discussed in further detail below).
Employees can seek alternative work while stood down and it does not trigger their “resignation”.
Stand down can apply to part of a business (and only the staff who can’t be engaged). For example, in a hotel the bar staff may need to be stood down, but the reception, cleaning and security staff are still needed.
A stand down may also apply to operationally distinct parts of the business, but there can also be a partial stand down of a business in other ways (e.g. partial stand down of hours where employees cannot be usefully employed for part of their ordinary hours).
There is no required notice period and they can be effective immediately. It is good practice to inform employees as soon as possible of whether they are being stood down.
Leave entitlements during stand down
Current leave periods
Future leave requests
Where the employee is stood down, and then requests annual leave or long service leave, the paid leave can be taken if the employer authorises it. An employer may decide not to authorise/agree to the request.
While employers do not have to authorise taking of paid leave after a stand down is brought into effect, in current circumstances it is good practice to allow employees to take accrued paid leave if they request to do so.
There may be reasons (cash flow, etc) to refuse requests for using paid annual leave and long service leave, but grounds to refuse other leave (such as personal leave or compassionate leave where evidence is provided) are less certain and it will be difficult to justify not authorising the leave.
Accrual of leave
An employee who is stood down without pay is still employed and continues to accrue leave entitlements during the period.
The period of the stand down does not break continuous service.
For further details around these issues, working from home arrangements or how to respond where there has been a potential exposure in the workplace, please refer to our previous updates on our website.