As South Australia enters a seven-day hard lockdown, we recap the options available to employers who do not have enough productive work for employees because of the impact of these restrictions. EMA Consulting remains ready and able to assist.
Throughout the 2020 COVID-19 pandemic, various measures have been implemented to contain the spread of infection. These have had widespread economic impacts. Options are available for employees who do not have productive work for employees because of the virus itself or the government-imposed restrictions.
EMA Consulting has previously released detailed information about those options, but this EMA Note is a summary and a framework for decision-making. All the options in this EMA Note assume that the employer has insufficient productive work for its employees because of the effects of the pandemic or the associated government restrictions.
Employers must check any applicable Fair Work Act provisions, awards, enterprise agreements, contracts of employment, and policies or procedures to see what consultation obligations they have. These will vary. Breaching consultation obligations can result in penalties and disputation. It is likely that the period of consultation will be curtailed because of the immediacy of the lockdown, but employers must do what they reasonably can within the time that is available.
General Stand down – under an enterprise agreement or the Fair Work Act
Under the Fair Work Act 2009 (Cth) an employer may ‘stand down’ employees without pay in certain circumstances, including a stoppage of work for any cause for which the employer cannot reasonably be held responsible. If the employee’s enterprise agreement or contract of employment provides the employer an ability to stand down, the specific stand down provisions in the enterprise agreement or contract will apply and the FW Act will not apply to that employee. Enterprise agreements may contain additional protections for employees or restrictions on the power to stand down employees.
Where the government imposes mandatory lockdown or closure it may result in there being an actual stoppage of work for which the employer itself cannot reasonably be held responsible. Even if your industry is permitted to operate, critical parts or services in the supply chain may be disrupted leading to a stoppage. For a stand down under this section, the work itself must be stopped, not just slowed down. We recommend employers seek advice to determine whether there is likely a stoppage of work in their circumstances.
The onus is on the employer to demonstrate that the employees cannot be usefully employed, and this is an objective test, not simply an employer preference. Once useful employment becomes available, relevant employees must be recalled to work.
Notice of stand down
An employee who is stood down must be given written notice of the commencement and reasons for the stand down. We recommend that employers seek advice about the wording of that communication.
Accessing leave during stand down
Employers might consider allowing an employee to access accrued annual leave or long service leave instead of being stood down. This could form part of a consultation process. An employee who had already been granted a period of leave will not be on stand down for the period of that approved leave. Any notice of stand down should be for a commencement date the day after that approved leave ends.
EMA Help Available
EMA Consulting staff are working from home. During previous restrictions we established very effective technology and communication networks to ensure we could still service and assist our clients effectively and in a timely manner.
Our switchboard line (08) 8203 1700 is operating as normal and you can be put through to any of our team to whom you would like to speak.
If you have a Consultant’s mobile phone number, you can of course call them on that – or email as usual. All staff will be available throughout their normal working days.
If you are unsure about your rights and obligations with employees in the current circumstances, we are available at short notice to advise and assist you.
Require further information/assistance?
This EMA Note is not comprehensive advice about your situation and does not cover all your obligations. If you require further information or advice, please contact your Consultant.
 See s 524