Stand down, leave and casuals

Stand down, leave and casuals

Stand down

The Fair Work Act 2009 (Cth) (Act) has stand down provisions, which are found at section 524 of the Act, which allow an employer to stand an employee down without pay.

However, the only circumstances in which an employer can stand an employee down is if the employee cannot usefully be employed because of one of the following circumstances:

1. industrial action (other than industrial action organised or engaged in by the employer);
2. a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown; or
3. a stoppage of work for any cause for which the employer cannot reasonably be held responsible.

The Act also includes provisions that allow for any stand down or proposed stand down to be disputed.

VAHPA does not believe that COVID- 19 is grounds to stand an employee down without pay. The Fair Work Ombudsman seems to be of the same opinion as stated on their website:

 “Standing down employees without pay is not generally available due to a deterioration of business conditions or because an employee has the coronavirus. Enterprise Agreements and employment contracts can have different or extra rules about when an employer can stand down an employee without pay. Employers are not required to make payments to employees for the period of a stand down, but may choose to pay their employees.”

Most Enterprise Agreements covering VAHPA members do not have provisions that allow an employer to stand employees down without pay. If there are no stand down provisions in your Enterprise Agreement, your employer may still implement the stand down provision of the Act, but only in the circumstances outlined above.

However, it is possible that your contract of employment includes provisions that may allow your employer to stand you down without pay in certain circumstances.

If your employer is proposing to stand you down without pay, we would request that you ask your employer on what basis they are doing this, then contact VAHPA with this information.

Direction to take annual leave or long service leave

Some employers may try and direct you to take annual leave or long service leave because of a downturn in business or their business (or certain parts of their business) is no longer operating because of the COVID- 19.

Many Enterprise Agreements provide for an employee to take annual leave in certain circumstances. These are usually:

1. Where an employee has excessive leave. If your Enterprise Agreement provides for an employer to direct you to take excessive annual leave, then you can be directed to take excessive annual leave, subject to your employer complying with the requirements of the clause. For example, if your Enterprise Agreement defines excessive leave as at least 8 weeks annual leave and you must be given at least 6 weeks’ notice of the requirement to take annual leave, then your employer must comply with this. This means you can’t be directed to take annual leave if you have less than 8 weeks annual leave accrued or be given less than 6 weeks’ notice of the requirement to take excess annual leave; and/or
2. Due to a shutdown period, usually around the Christmas/New Year period. If your Enterprise Agreement allows your employer to direct you to take annual leave due to a shutdown, then you can be directed to take annual leave due to the shutdown, subject to your employer complying with the requirements of the clause. For example, if your Enterprise Agreement provides for you to be directed to take annual leave due to a shutdown period between Christmas and New Year only, you can’t be directed to take annual leave due to a shutdown period in March and April due to COVID- 19.

In relation to long service leave, most Enterprise Agreements don’t allow your employer to direct you to take long service leave, though they do provide for your employer to make an application to the Fair Work Commission for it to determine when you take long service leave.

If your employer is proposing to direct you to take annual leave and/or long service leave, we would again first request that you ask your employer on what basis they are doing this, then contact VAHPA with this information.

Personal Leave

Personal leave, also called sick leave and personal/carer’s leave, is an entitlement that full-time, part-time and fixed-term employees have which they can use to be absent from work on paid leave:

1. when they are ill or injured. Generally the illness or injury has to result in the employee being unfit for work for them to access personal leave, though in some Enterprise Agreements the entitlement is broader, such as being able to use personal leave to attend medical appointments even when the employee is fit for work;
2. to provide care or support to a member of the employee’s immediate family or household who requires care or support because of a personal illness or injury affecting the family/household member; or because of an unexpected emergency affecting the family/household member.

To access personal leave, you will need to notify your employer as soon as practicable of your intention to take it (which may be at a time after you have already started the leave) and advise your employer of the period or expected period of leave.

You will also generally be required to provide evidence that you have taken personal leave for one of the reasons indicated above. The exact evidence you will be required to provide will depend on your Enterprise Agreement, but it is commonly either a medical certificate or a statutory declaration.

The amount of personal leave you are entitled to will also depend on your Enterprise Agreement, and unused personal leave accumulates from year to year.

We have also started to see some employers in the community providing employees with paid leave. As such, if you are in one of the situations below, you should check with your employer as to whether they will provide you with paid special leave.

If you are infected with the Coronavirus (COVID-19)

If you have COVID-19, you are entitled to use your personal leave to be absent from work, subject to you meeting the notice and evidence requirements referred to above. If you are going to run out of your accrued personal leave, you should speak with your employer about taking leave without pay (generally your employer can’t terminate your employment because you have been off work due to an illness or injury unless you have been off work due to illness or injury for a period of at least 3 consecutive months or at least 3 months in total over the last 12 months). You may also be able to use other types of leave.

If you are required to self-isolate

If you do not have COVID-19, and are ready, willing and able to work, a request by your employer that you not attend work and self-isolate is effectively a direction to stop work. This should be followed by you, as such a direction is likely lawful and reasonable.

However, it is VAHPA’s understanding that you should not be required to take personal leave. Your employer should continue to pay you at your normal rate of pay while the direction to stop work remains. If you obtain a medical certificate clearing you to return to work your employer should allow you to return to work. If practicable, your employer may direct you to work from home during that period.

If you are required to self-isolate due to Government policy, and not because your employer has directed you to do so, please contact VAHPA as the situation is different.

If you are looking after a family or household infected with COVID-19

If an immediate family member or member of your household is infected with COVID-19, you are entitled to use your personal leave to provide care or support to that person, subject to you meeting the notice and evidence requirements referred to above. If you run out of your personal leave, you are also entitled to 2 days of unpaid carer’s leave. If you run out of your personal leave and have used the 2 days unpaid carer’s leave, then you should speak with your employer about taking leave without pay. You may also be able to use other types of leave or speak with your employer about working from home if this is practicable.

If a family member of household member is required to self-isolate

If you have an immediate family member who does not have COVID-19 but is required to self-isolate, it is VAHPA’s understanding that you are entitled to access personal leave to provide care or support to this person as this is an unexpected emergency affecting them, subject to you meeting the notice and evidence requirements referred to above. If you run out of your personal leave, VAHPA believes you are also entitled to 2 days of unpaid carer’s leave. If you run out of your personal leave and have used 2 days unpaid carer’s leave, then you should speak with your employer about taking leave without pay. You may also be able to use other types of leave or speak with your employer about working from home if this is practicable.

If your child’s pre-school or school has shut down

If your child’s pre-school or school shuts down and you need to stay home to look after them, it is VAHPA’s understanding that you are entitled to access personal leave to provide care to them as this is an unexpected emergency affecting them, subject to you meeting the notice and evidence requirements referred to above. If you run out of your personal leave, VAHPA believes you are also entitled to 2 days of unpaid carer’s leave. If you run out of your personal leave and have used 2 days unpaid carer’s leave, then you should speak with your employer about taking leave without pay. You may also be able to use other types of leave or speak with your employer about working from home if this is practicable.

Casuals

Casual employees are generally not entitled to paid leave (there may be some exceptions, including under your Enterprise Agreement). The 25% loading that casuals receive on top of the hourly rate of pay that full-time and part-time employees receive is designed to compensate them for the lack of paid leave. However, as many casuals will tell you, this is rarely the case. Further, whilst some employees choose to be casual employees, many employees are not casuals by choice. This lack of secure employment is a significant issue in Australian society that the Federal Government needs to address, but it has been unwilling to do so.

As some of you would be aware, the broader Union movement (including VAHPA), has been lobbying the Federal Government to legislate for casuals to receive paid special leave of up to 2 weeks in these difficult and unprecedented times. Unfortunately, the response from the Federal Government has been to reject this call.

However, we have started to see some employers in the community providing casual employees with paid leave. As such, if you are in one of the situations below, you should check with your employer as to whether they will provide you with paid special leave.

It should also be noted that COVID-19 may cause a downturn in business that will see businesses try to reduce costs.  As a result this may mean that some businesses will try to minimise the use of casual staff to reduce costs.

If your are infected with COVID-19

If you have COVID-19, you are not entitled to paid leave when you are absent from work.

If you as a casual employee are not able to work any of your rostered shifts, you must inform your employer and you may be required to provide a medical certificate. It is unlawful for employers to discriminate against casual employees who have been unwell. Employers are not entitled to dismiss those casual employees or to stop giving them shifts on that basis unless they have been off work due to illness or injury for a period of at least 3 consecutive months or at least 3 months in total over the last 12 months.

If you are required to self-isolate

If you do not have the COVID-19, and are ready, willing and able to work, a request by your employer that you not attend work and self-isolate is effectively a direction to stop work. This should be followed by you, as such a direction is likely lawful and reasonable.

Your employer should continue to pay you at your normal rate of pay for what would have been your rostered shifts while the direction to stop work remains. If you obtain a medical certificate clearing you to return to work your employer should allow you to return to work. If practicable, your employer may direct you to work from home during that period.

If you are looking after a family or household infected with COVID-19)

If an immediate family member or member of your household is infected with COVID-19, you are not entitled to paid leave to provide care or support to that person.

As a casual employee you are entitled to 2 days of unpaid carer’s leave. To access this unpaid carer’s leave, you will need to notify your employer as soon as practicable of your intention to take it (which may be at a time after you have already started the leave) and advise your employer of the period or expected period of leave. You will also generally be required to provide evidence that you have taken carer’s leave to provide care or support to the family/household member. The exact evidence you will be required to provide will depend on your Enterprise Agreement, but it is commonly either a medical certificate or a statutory declaration.

You should also speak with your employer if necessary about whether you can access additional unpaid leave.

If a family member of household member is required to self-isolate

If you have an immediate family member who does not have the COVID-19 but is required to self-isolate, again, unfortunately you are not entitled to paid leave to provide care or support to that person. 

It is VAHPA’s understanding however that you are entitled to access 2 days unpaid carer’s leave to provide care or support to this person as this is an unexpected emergency affecting them. To access this unpaid carer’s leave, you will need to notify your employer as soon as practicable of your intention to take it (which may be at a time after you have already started the leave) and advise your employer of the period or expected period of leave. You will also generally be required to provide evidence that you have taken carer’s leave to provide care or support to the family/household member. The exact evidence you will be required to provide will depend on your Enterprise Agreement, but it is commonly either a medical certificate or a statutory declaration.

You should also speak with your employer if necessary about whether you can access additional unpaid leave.

If your child’s pre-school or school has shut down

If your child’s pre-school or school shuts down and you need to stay home to look after them, then again unfortunately you are not entitled to paid leave to provide care or support to your child/children.

It is VAHPA’s understanding however that you are entitled to access 2 days unpaid carer’s leave to provide care to your child/children as this is an unexpected emergency affecting them. To access this unpaid carer’s leave, you will need to notify your employer as soon as practicable of your intention to take it (which may be at a time after you have already started the leave) and advise your employer of the period or expected period of leave. You will also generally be required to provide evidence that you have taken carer’s leave to provide care or support to the family/household member. The exact evidence you will be required to provide will depend on your Enterprise Agreement, but it is commonly either a medical certificate or a statutory declaration.

You should also speak with your employer if necessary about whether you can access additional unpaid leave.

Contact VAHPA

The above information is general only, and your entitlements may vary depending on your Enterprise Agreement, contract of employment and personal circumstances. Please contact VAHPA if you have any questions in relation to your entitlement to the above or your entitlements.

As you can understand, the situation with COVID-19 is now an unprecedented one in Australia. As such VAHPA has provided the above advice based on the information we currently have. This may change and this will be updated accordingly.

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