Natural disasters and stand downs

Stand downs during a natural disaster

In some circumstances, such as during a natural disaster, an employer may have the right to stand down an employee for a period during which the employee cannot be usefully employed.

A stand down is when an employer cannot usefully employ a worker because of any stoppage of work for a cause for which the employer cannot reasonably be held responsible. This can occur as a result of natural disasters, but can also occur due to events such as public health lockdowns in response to the Covid-19 pandemic.

An employee who is stood down remains employed and has a right to return to work when the stand down has concluded. A stand down is a bit like putting employment on hold for a period while there is no work to do.  

The circumstances in which an employee may be stood down depend on the source of the employer’s power to stand the employee down.

If you have an enterprise agreement, it may contain provisions dealing with stand downs, for example, requiring the employer to consult or give adequate notice. A contract of employment may also contain specific stand down provisions. You should contact your union for more information and advice.

More often, a stand down is initiated under the provisions of the Fair Work Act.  

Stand downs under the Fair Work Act

The Fair Work Act allows an employer to stand down an employee in circumstances where they cannot be usefully employed because of any stoppage of work for a cause for which the employer cannot reasonably be held responsible.

This could cover disaster-related circumstances such as the damage, destruction or inaccessibility of the workplace (at least in circumstances where working from home or another location is not possible), the lack of utilities at the workplace (e.g. power, gas) or stoppages of work caused by unavailability of supplies.

An employer cannot stand you down merely because there are no customers, e.g. due to a natural disaster. There must be a stoppage of work that is not caused by the employer, and there must be no work for you to do. If you could usefully work from another location or worksite, then you cannot be stood down.

The stoppage of work doesn’t need to be a stoppage of work in the employer’s own business, but it does need to have the result that the employer’s employee who is being asked to stand down cannot be usefully employed.

The stand down can continue only for as long as the employee cannot be usefully employed because of that stoppage of work.

If your employer stands you down, they should inform you:

• When the stand down will start and is likely to finish
• Whether you will be paid during the stand down
• Any other impacts on your entitlements

If this occurs you should contact your union for advice and information.

The employer is not required to make payments to an employee during the stand down, but may agree to do so. 

Your rights if you are stood down during a natural disaster

Pay during a stand down

If you are stood down , you can still seek your employer’s agreement to go on a period of leave (such as annual leave as provided for in the National Employment Standards (NES)) instead.

All forms of leave require authorisation from your employer during a stand down, even if they normally wouldn’t (such as sick leave under the NES). More worker-friendly arrangements might be found in enterprise agreements. 

Personal leave and annual leave do not accrue during a period of stand down, unless an employer has agreed that they will. You should try to ensure any agreement from your employer is in writing.

A stand down period does count for the purposes of accessing some other entitlements that rely on a person being employed for a particular period of time before they can be accessed (such as a right to request flexible working arrangements or a right to take parental leave). A stand down period also counts for the purposes of calculating employee’s length of service for notice of termination and severance pay.

Stand downs do not generally count toward length of service for calculating redundancy pay.

Disputes during a stand down

If you are stood down under the provisions of the Fair Work Act then you may make an application to the Fair Work Commission to deal with a dispute about the stand down, or your union can make an application for you. You should discuss this with your union first.

The Fair Work Commission must consider fairness between the parties in resolving these disputes. This can result in an employee receiving some payment even if no payment would otherwise be required to be made, or the period of stand down be adjusted, or some work being offered or some other outcome. 

An employee who is stood down under the provisions of enterprise agreement may also have rights to dispute the stand down, including with union representation.