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STAND DOWN PROVISIONS UNDER WORKCHOICES

As of 12th December 2006 an employer can stand down employees without pay, under certain circumstances, when no work is offering, to relieve the employer of the obligation to pay wages under specific circumstances.

Definition - A stand down permits the employer to deduct pay for any time, after a specified period that an employee cannot be usefully employed, through no fault of the employer.

Circumstances resulting in an Authorised Stand-down:

 

• A strike (including a strike by a third party which affects the employer). The employer has to show they made reasonable efforts to achieve an alternative solution prior to any stand-down.
• A breakdown of machinery, however this must not be the result of employer’s negligence e.g. poor maintenance.
• A stoppage of work for which the employer cannot reasonably be held responsible. Loss of a contract or economic factors are not circumstances that would entitle the employer to stand down an employee e.g. a downturn in business is not usually regarded as an allowable circumstance.

Unauthorised stand-downs:

The onus is on the employer to establish that the employees’ concerned cannot be usefully employed, or you will be subject to civil penalties. You must, therefore, show that you took all possible steps to find useful employment for the employees. However, the employee is under no obligation to accept work greatly removed from their normal duties. Where a court determines the stand-down to be unauthorised an employee can recover wages for the period of the unauthorised stand-down.

General Guidance on Stand-downs:

• There is no interruption to the contract of employment or continuity of service
• They are a temporary measure only
• They should be a ‘last resort’, not a ‘first choice' option
• Workchoices’ default provisions only apply where the employee’s applicable industrial instrument, or individual contract of employer, does not provide for stand-down.
• While there is no maximum period specified that an employer can apply a stand-down, any period in excess of a week will generally be challenged before the relevant court.
• An employee’s entitlement to any form of paid leave or a public holiday is not affected in any way by any stand-down occurring during the period of absence.