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Advance Australia Fair

Alexandra Celeste Elgue

Within weeks of the declaration of COVID-19 as a pandemic, thousands of employees have been stood down on ‘leave without pay’, following government measures to contain the outbreak. This sudden deluge of unemployment has caused considerable uncertainty among students—who make up at least a third of the casual workforce—and it is important that all workers be aware of their standing from a legal perspective, as well as their options moving forward.

Legality of the Action- The Fair Work Commission

The measures undertaken by the government are indeed compliant with the provisions of the Fair Work Act (2009). The Act stipulates the conditions under which employers may ‘stand down on an unpaid basis an employee during a period in which the employee cannot usefully be employed because of one of the following circumstances’, including: ‘A stoppage of work for any cause for which the employer cannot reasonably be held responsible’. [1]

According to the Fair Work Commission, employers can stand down employees under this provision if they can demonstrate that: a) there is a stoppage of work; b) the employees to be stood down cannot be usefully employed; and c) the cause of the stoppage must also be one that the employers cannot be reasonably be held responsible for.[2]

Given the government- mandated closure of all non-essential services, many Australians placed on leave without pay will find that the above conditions have been met. It should be noted, however, that employers are generally not permitted to stand down employees because of a deterioration in business conditions, or because an employee has contracted COVID-19.[3]

Your rights as a worker

Your individual rights regarding whether you can be stood down without pay will be largely dependent on your own contract. It is important to note that under the National Employment Standards, casual employees are not guaranteed the same benefits as part-time or full-time employees, such as paid sick or carer’s leave entitlements. This means that the high rates of casual student employees have no financial protections for the hours they cannot work.

Fortunately, some workplaces have chosen to continue to pay their employees at a base rate during this period, supported by the JobKeeper payment. Some jobs may also provide the option of working from home. While the Fair Work Commission does not yet include specific regulations regarding the obligations of employers to provide this option, employees should speak to their employers about the possibility of making such arrangements if required.

Part-time and full-time workers may have more options available to them if their contract includes a requirement that their employer negotiate the terms of leave without pay. It is highly recommended during this uncertain time that you review your contract and verify what your rights may be in the circumstances. Otherwise, it is important to note that part-time workers have access to sick leave and holidays, which can be used up to assist during this period. Part-time and full-time workers should also be aware that their leave will accrue as they are stood down, even if they are not paid during this period.

Options moving forward

Although employers do have legal standing when it comes to their right to dismiss employees when desired, all workers should know that they do have options regarding their financial situation. The government has announced new changes to Centrelink; Jobseeker Payments (formerly known as Newstart), Youth Allowance, Jobkeeper Payments, Parenting Payments, Farm Household allowance payment and Special Benefits payments have all been increased. The Centrelink website has also implemented new measures for newly unemployed Australians to streamline the application process and obtain access to their benefits more easily.

All workers should take this opportunity to open the lines of communication with employers, join their union and discuss with co-workers where they stand regarding the rights and options available during this turbulent time.


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