Introduction
The Workplace Relations Act 1996 (WR Act) provides that an employer can stand down an employee without pay in certain circumstances.
This article explains when an employer can stand down an employee and also explains the consequences of an unauthorised stand down.
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When can an employer stand down employees?
An employer can stand down an employee, without pay, if that employee cannot be usefully employed due to:
- a strike;
- a break down in machinery; or
- a work stoppage for which the employer cannot reasonably be held responsible; for example, a natural disaster.
This is a default stand down provision and applies only where a contract of employment or industrial instrument does not provide for another method of stand down. If the provision in an employment contract or other such agreement provides for additional terms, such as remuneration during stand down, these terms must be followed.
However, if the stand down provision in a contract of employment or industrial instrument requires a stand down to be authorised by a third party (such as the Australian Industrial Relations Commission), the default stand down provision in the WR Act will apply.
Why is there a stand down provision?
In the absence of a stand down provision, an employer will usually have to choose between terminating an employee’s employment or continuing to pay the employee despite the lack of work.
The default stand down provision is based on stand down provisions that previously applied in Victoria and in numerous federal awards such as the Metal, Engineering and Associated Industries Award 1998 and agreements.
Stand downs and employee entitlements
If an employee is stood down in accordance with the WR Act, the employee’s continuity of service is not broken. Furthermore, the employee continues to accrue other entitlements such as annual and personal leave.
Remedies for unauthorised stand downs
Unauthorised stand downs are prohibited. Where an employer cannot show that an employee cannot be usefully employed because of one of the prescribed circumstances, a stand down will not be authorised. A court may impose fess of up to $33,000 on a corporation for an unauthorised stand down.
An employee who is stood down can also seek an injunction from the Australian Federal Court or the Australian Federal Magistrates Court to require an employer to not stand down an employee.
If an employee’s stand down is found to be unauthorised, the employee will be entitled to recover unpaid wages for the duration of the unauthorised stand down. | 
