Did you know … that there is no common law right for an employer to stand down an employee without pay during a period in which they cannot be usefully employed. However, this rule

is modified by section 542 of the Fair Work Act 2009 (Cth) (FW Act) which provides that an employer can enforce a stand down without pay if:

  • An employee cannot be usefully employed because of:
    • industrial action
    • breakdown of machinery/ equipment, or
    • a stoppage of work, and
  • the employer cannot reasonably be held responsible for the stoppage.

Consequently, a stand down under the FW Act can only last for the length of time that an employee cannot be usefully employed for one of the above reasons and, if challenged, an employer will have the onus of establishing the causal connection.

However, the FW Act provides that if there is a stand down provision in a contract of employment or enterprise agreement, then the employer must proceed under that instrument and not the FW Act.

Accordingly, employers should consider including stand down provisions in their contracts or enterprise agreements if they wish to have more flexibility about the circumstances in which they can lawfully stand employees down.