States across Australia have gone – or are going – into lockdown, and there is no certainty about when things will return to normal. Just last year, the Federal Government enacted special legislation to help employers and employees to deal with these upheavals. But the JobKeeper provisions in the Fair Work Act, including options to stand-down employees and ask them to use accrued leave, ended in March 2021.  What can employers do now?

Fair Work Act Stand-down:

The only relevant option in the Fair Work Act is the general stand-down provision. Unfortunately, this Fair Work Act stand-down provision is a blunt instrument, and may not be useful in all circumstances. It allows employees to be stood down without pay:

• where there is no work for the employee to perform, and
• the stoppage is due to a cause beyond the employer’s control.

If you have a retail shop which is closed as a result of the Government’s lockdown directions, then there is probably no work to do, and a Fair Work Act stand-down can apply. However, there are many businesses which will continue to operate. If you need to reduce hours or direct employees to work from home, what options do you have?

Flexibility Options:

• Check if an award or enterprise agreement applies
• If it does, what does it say about standing down, reducing hours or requiring employees to take leave?
• Check the employment contract – are there any stand-down or other flexibility provisions?
• Negotiate – regardless of what the Act or an award says, you can always change the employment terms if the employee agrees. An agreement to temporarily reduce hours, or change work patterns is usually a better outcome for employer and employee compared with a winding up of the business and redundancy.
• Consult – you should establish and maintain consultation with employees, even if this can’t be done face-to-face. This is a requirement for any changes under an award or agreement, but it may also assist you to negotiate with employees.

If you would like to discuss this, or any other workplace issues, please contact Andrew Bland or call 02 9412 3077.