employee shut down without pay

If my workplace shuts down can I be stood down without pay?

Where a closure of a business is unavoidable and reasonably outside of the employer’s control, then a business may lawfully stand down employees during the closure period.

Before commencing a workplace shutdown, employers should consult with employees to discuss the effect of the shut down on employees and measures to reduce adverse effects of the shutdown.

If a workplace is shut down due to COVID-19, best practice would be for employers to endeavour to pay workers during shut down to minimise the impact on the workers although, this is currently not a legal obligation on the employer.

The Fair Work Act

Section 524 of the Fair Work Act states that if an employee cannot be usefully employed, and the stoppage of work (or a shutdown) is reasonably outside of the employer’s control, the employer is not required to pay employees that are stood down.

If you are covered by an enterprise agreement, other provisions may apply (though most EAs do not have alternate shut-down provisions). If you are covered by a contract, it is best you seek legal advice to ascertain whether you have any legal rights under your specific contract of employment. 

If there is a downturn in the economy and the employer is not required to shut down by a Government Order, this is not sufficient to gain protection under the Fair Work Act. 

If you are stood down without pay or reduced hours or pay, and your employer has not been forced to shut down, you can contact us for advice on your specific circumstances.

Termination and Unfair Dismissal

If you work for an employer and you are terminated or made redundant you may be entitled to file an application for unfair dismissal. 

In order to be eligible, you need to be a permanent employee who has work for at least 6 months (for employers that have greater than 15 employees) and for at least 12 months (for employers that have less than 15 employees). You only have 21 days to file an application from the date of termination, so you should contact us as soon as possible for legal advice in respect of your rights.

If an employer no longer has a need for a specific position and cannot redeploy the employee and decides to make an employee redundant, they should follow industry practice and offer to pay a sum that is consistent with the relevant industry award.   

Payment of leave

Do I get paid leave to take time off to self-isolate?

Where possible, employers should make provisions for you to work from home. However, we recognise this is not likely to be feasible for some workers.

Permanent employees – annual and personal leave that has accrued is a legal entitlement that is accessible to employees and should be honoured by employers if such leave is applied for by employees. If you are self-isolating due to government requirements or are unwell, then personal leave should be available to you. 

Casual employees – Casual workers have no legal entitlement to paid sick leave. However, employers may at their discretion offer “special leave” to minimise the financial impact of COVID-19. 

Independent contractors – Like casuals, paid leave generally does not apply to independent contractors; however, employers may pay discretionary amounts to mitigate losses to contractors.

Paid leave

Do I get paid leave if I suspect I may have COVID-19 (self-exclusion)?

This is a more complex issue. If you take time off because you fear that you may have contracted COVID-19, it is advisable to seek medical advice immediately and obtain a doctor issued medical certificate to provide to your employer.

If an employer directs you to remain at home until you have medical clearance, then your employer should continue to pay your wages. If you are unwell, and have enough personal leave remaining then you should be paid personal leave for the time off work. 

Casual employees and contractors are generally not entitled to paid personal leave.

Paid leave for Care Taking

Do I get paid to take time off to care for family members who may be affected by illness?

Permanent employees – You can access paid carer’s leave to care for any immediate family member affected by an illness, which comes out of your personal leave accrual.

Casual employees – Casual workers have no legal entitlement to paid carer’s leave. You must advise the employer that you are taking the time off for that reason immediately and may need to provide evidence that your family member is sick. You cannot be discriminated against for taking time off to care for immediate family members.

Independent contractors – Paid leave generally does not apply to independent contractors, however, this is subject to the terms of your contract for which you should seek legal advice.

Sick leave accruals

If I don’t have enough sick leave accrued to cover me and I need to take time off due to illness – what will happen?

Permanent employees – If you are a permanent worker and become unwell and have run out of accrued paid personal leave you may seek to access your annual leave or unpaid personal leave.

Casual employees – Paid sick leave does not apply to casual workers.

Independent contractors – Paid sick leave generally does not apply to independent contractors and is dependent on the specific terms of your contract.

You cannot be discriminated against if you are absent from work for having an illness.

What happens if there is a reported case at my workplace?

If you have become aware that there is a reported case of COVID-19 in the workplace — whether it be a fellow worker or an audience member — your employer must take steps to protect workers from exposure and provide a healthy and safe workplace. The following advice applies to all workers including permanent, casual and contractors. Independent contractors are considered ‘workers’ under work health and safety legislation and are entitled to the same consideration as employees in these circumstances.

We recommend that you ask your employer to provide information on the section or department the person was working in, so that you can determine your proximity to the person who has been diagnosed and what measures they intend to implement.

Employers have an obligation to provide information and training to workers regarding potential health risks. Employers also have obligations to ensure that co-workers are not exposed to known cases or contacts and will be required to provide any contacts of cases to public health authorities.

Workers have obligations to take reasonable care that their acts or omissions do not adversely affect other colleagues (for example, by failing to observe health department advice or recommendations).

Under Work Health and Safety legislation, you have the right to refuse to carry out, or cease work, if you have a reasonable concern that the work would expose you to a serious risk to your health and safety, emanating from an immediate or imminent exposure to a hazard. A serious risk could mean the risk of encountering a confirmed case of COVID-19, however, it may not include a ‘suspected case’. If your employer is requiring you to work in circumstances where you think you are exposed to serious risk, please contact us to discuss your rights. 

Can I be sacked for refusing to attend work?

Under Work Health and Safety legislation, all workers have the right to refuse to carry out, or cease work, if you have a reasonable concern that the work would expose you to a serious risk to your health and safety, emanating from an immediate or imminent exposure to a hazard. A serious risk could mean the risk of coming into contact with a confirmed case of COVID-19, however, it may not include a ‘suspected case’.

However, it is very important to obtain advice before refusing to attend work, and communicate with your employer in writing should you need to stay home. If your employer refuses to permit you to stay home, seek advice.

Permanent employees – If you are a permanent employee and you obtain a medical certificate because you feel unwell, whether physically or psychologically, your employer cannot lawfully terminate your employment because you are sick.

Seek advice about your circumstances before refusing work where your employer is requiring you to continue.

Casual employees – If you are a casual employee and you obtain a medical certificate because you feel unwell, either physically or psychologically, your employer cannot legally terminate your employment for that reason, however there is no legal requirement that you be paid.

While casual employment is an insecure form of work, an employer cannot discriminate against you because you have caring obligations for an immediate family member.

Independent contractors – Best practice would be to speak to your employer about how to manage the situation. Employers have the same obligation to you to provide a safe and healthy workplace and cannot discriminate against you for exercising your right to a safe workplace.

What if I have an underlying health condition?

I have an underlying health condition that puts me at higher risk what should I do? Is my employer required to do more for me?

Some workers — such as older workers, people with chronic health conditions and those who are immuno-compromised — may be at higher risk of contracting COVID-19. As the situation with the spread and behaviour of the virus is yet unknown, it is wise to consult regularly with your doctor and seek medical advice about the various risks of attending work and how to take all necessary precautions to avoid exposure. Your doctor can write a medical certificate should they believe you should either work from home, or not attend work at all, if working from home is not a possibility. 

How does this affect work-related international travel?

Do I have the right to refuse to travel for work?

Under Australian Work Health and Safety legislation you have the right to refuse to carry out, or cease work if you have a reasonable concern that the work would expose you to a serious risk from an immediate or imminent exposure to a hazard. A serious risk would mean the risk of encountering a confirmed case of COVID-19, however, it may not include a ‘suspected case’. This applies to all categories of workers i.e. permanent, casual and independent contractors.

Can I refuse to work?

If I refuse to work, will I still get paid out the full amount of my contract?

Permanent employees – Seek advice if your employer does not consent to ceasing at-risk duties including travel. Whether you get paid would depend on the terms of your contract, how much notice you provide and the specific circumstances of your case.

Casual employees – As casual employees are engaged on an hourly or daily basis, it is not likely to be paid out beyond this engagement.

Independent contractors – Whether you get paid would depend on the terms of your contract, and how much notice you are required to provide.

About Philip Evangelou

Philip EvangelouPhil is a director at OpenLegal. He has over 12 years experience working in private practice and in-house counsel in Sydney and London, giving him expertise in employment law, IP, finance, leases, dispute resolution, insurance and contracts.