JobKeeper and Stand Downs

KEY TAKEOUTS

• The employer cannot use stand downs to underpay employees for hours worked
• Employer’s need to consider giving other options such as training, taking annual
  leave before giving a direction to reduce hours
• Reduction of hours must be proportionate to hours required to work
• The employer cannot give unreasonable directions such as increasing some
  employees’ hours and decreasing others
• Case Study: Allan Jones v Live Events Australia (2020)

Employer’s parameters for standing down Employees

Employers are able to reduce an employee’s number of hours including to the reduction of zero hours under the new JobKeeper-enabling stand down direction. The Fair Work Commission can exercise their powers to resolve a dispute between an employer and employee by conciliation or changing the direction to make it more reasonable.

In the case of Allan Jones v Live Events Australia (2020), the employer reduced the employee’s paid working hours by 40%. The employee sought the Fair Work Commission to exercise their powers of conciliation and altering directions from employer. The employer asked all employees to agree to a reduction in hours. The employee refused the reduction in hours because his workload was unchanged and he needed to do the 80 hours per fortnight to complete the workload. The employer issued the direction only to that one employee. The employee submitted to the Fair Work Commission that the direction was unauthorised because there was no disruption affecting his role or industry and that he could be employed for his normal days and hours of work. The employer argued that there was an economic impact to their business, and that they complied with the notice requirement under the relevant Award.

The Fair Work Commission found that the employer “overplayed its hand” and that the reduction in hours was disproportionate to the employee actual/ prospective hours. When the employer issued the direction to decrease the employees hours, they had increased working hours for other staff therefore, the Fair Work Commission found that the direction was unreasonable.

I am an experienced lawyer who heads the Employment Law Team. I understand that we live in unprecedented times and I am here to assist both employer and employee. It is critical to engage with Coutts Lawyers and Conveyancers before standing down an employee as we can assist the employer to follow the appropriate guidelines. If you are an employee who has been unfairly stood down by an employer, we are here to help you.

ABOUT KARENA NICHOLLS:

Karena is a Partner at Coutts and is the Head of our Injury Compensation (with extensive knowledge in personal injury) and Employment Law teams. She is passionate and dedicated to helping her clients understand their rights and obligations and advising them on the best course of action to achieve their desired outcomes. It is her practical and client-orientated approach which has attributed to her authentic reputation positioning her as a highly regarded compensation and employment lawyer.