With half the country now in lockdown, businesses have been forced to shut their doors and employees have been unable to work. This period has led to questions and confusion about whether employers can order staff to take leave during lockdown periods.
If it’s in your contract, award or or agreement, then it’s possible, according to Employsure employee relations specialist Nicholas Hackenberg.
“As it stands, an employer can only direct their staff to take annual leave during a shutdown if their award or registered agreement allows it,” Hackenberg said.
“Some awards allow for it, but require the employer to give several weeks’ notice. In those first few weeks, the employer must pay their employee their normal wage,” he added.
“Other awards may not allow employers to force annual leave on staff. However, it can come into effect if a mutual agreement has been reached between them.”
Running down leave balances is an alternative that employers might take in lieu of standing down workers. This way, workers still get paid, while businesses minimise their leave burden.
The JobKeeper wage subsidy introduced last year also gave employers extra powers to run down leave balances while they received the subsidy.
But the current lockdown payments don’t afford the same power to employers.
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‘Closedown’ vs ‘shutdown’
And the same is true if you’ve accumulated annual leave, too.
But there’s another scenario, called a , where employees can’t do any work due to a natural disaster, like bushfires, floods or cyclones; because of equipment breakdowns; or because of industrial strikes.
Lockdowns do qualify as a situation where workers can be stood down, as it’s not the employer’s fault.
However, the employer is encouraged to explore every option – like remote working, changing rosters, and accessing leave – before employees are stood down.
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Whether you’re an employee or an employer, your best bet is to do some digging and find out for yourself.
“Employers confused as to what their obligations are should double check to see if their award or registered agreement allows them to direct employees to take annual leave,” said Hackenberg.
“This also includes those not covered by either. The general rule is an employer can only direct staff to take annual leave if that direction is considered to be reasonable.”
And it appears a lockdown-induced closure of the business would be considered reasonable.
“For example, it may be reasonable for your employer to ask you to take your annual leave, if your employer’s business is temporarily shutting down because of COVID-19,” stated Slater + Gordon Lawyers’ .
The FWO has a message to bosses looking to stand down their staff: communicate.
“Generally, there is no definitive guide for when your employer can and cannot ask you to take annual leave. Each case needs to be considered individually.”
Where to get help
If a workplace issue arises, the Fair Work Ombudsman generally wants employers and employees to have a crack at fixing the dispute between themselves first.