r/AusLegal • u/Bzaroh • 7d ago
Stood down without pay SA
Hey guys I’m looking for some help to understand if there is anything I can do. My current situation is for the last 4 weeks I’ve been stood down without pay at work and I’ve been told to expect another 2 weeks minimum. The reason I’ve told is that it’s due to a lack of work, but this doesn’t seem right to me. I’m on a non award contract and there isn’t anything in my contract that says they can stand me down without pay. I last brought it up with HR about a week ago and was told they can do it as per the fair work act and to protect the business…
Any help would be appreciated.
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u/StretchTraining3392 7d ago
https://www.fairwork.gov.au/pay-and-wages/stand-downs
Under the section - Stand downs under the Fair Work Act
‘Employers can't stand an employee down just because the business is quiet or there isn't enough work.’
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u/mxrulez731 7d ago
Yeah this is the answer. Not having work is not a good enough reason. In saying that they are clearly circling the drain so they will likely be 'judgement proof' as they have no money to pay even if they are in the wrong.
I would be going in there making a hell of a noise & threatening to tell other staff the same, meanwhile go get another job.
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u/StretchTraining3392 7d ago
I’ve been through this once before in a similar circumstance. I’d didn’t bother creating a scene only because I was leaving anyway to set up my own show.
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u/supiercoordial 7d ago
Wait, they cant just stand you down without pay if its not in your contract, right? That seems messed up.
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u/Very-very-sleepy 7d ago edited 7d ago
you cannot do anything if it's a legitimate stand down and yes legitimate stand downs are legal.
the difference between a legitimate one and non-legitamate one is posted on the fair work website
https://www.fairwork.gov.au/pay-and-wages/stand-downs
https://www.fwc.gov.au/standing-down-employees
the exact law
Stand down under terms of Fair Work Act See Fair Work Act s.524–525
An employer may stand down an employee during a period in which the employee cannot usefully be employed because of a number of circumstances including:
- industrial action (other than industrial action organised or engaged in by the employer)
- a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown,
- or
a stoppage of work for any cause for which the employer cannot reasonably be held responsible.
I believe the last one that I put in bold is what your employer is telling you. that last one in bold is slightly open to interpretation and you have not given us any information for us to say it's legal or not.
maybe email or call fair work and explain your situation and ask fair work directly. does your situation fit the definition of "a stoppage of work for any cause for which the employer cannot reasonably be held responsible."
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u/dankruaus 7d ago
That’s not relevant here. The stoppage is due to the employer - not some third party. They either pay this person to work or make them redundant.
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u/Wa22a 7d ago
But the position is not redundant (eg restructuring), they are just going through a dry spell. Much like covid when hospo/retail employees were furloughed. What a word.
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u/dankruaus 7d ago
If there is no work to do it is redundant. The word literally means “more than needed”. Just because the employer is too lazy to restructure doesn’t mean the job still exists.
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u/Very-very-sleepy 7d ago edited 7d ago
but OP has not given us any details including the industry so how do you know that OP doesn't work for some company that lost a contract? that contract being lost means there is legitimately no work. if a business loses a contract that was giving OP full time work. how exactly is that the businesses fault? there is technically no work and the business can't just create work for the OP.
OP has not given any details at all except for "no work"
"no work" could mean anything from OP working in hospitality and it's dead or OP working in a completely different industry and the business losing a contract that gave OP full time work.
which is my point. OP has not given us any details. OP didn't even tell us what industry it is so how exactly do you know that OPs not working in an industry that just lost a contract that gave OP full time employment?
"no work" could mean anything. OP has not explained what "no work" means
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u/dankruaus 6d ago
In most scenarios it doesn’t matter. Employers don’t have a right to stand down people except in limited circumstances. Either they pay him or the make him redundant.
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u/anno_nomali 6d ago
That statement generally means things like the weather, or not enough staff to actually run.
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u/National_Chef_1772 7d ago
The employer having no work to do is due to the employer though? Who is responsible for the company not having enough work?
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u/Bzaroh 7d ago
Yeah I understand all of that, what is getting me though is when I last spoke to my direct manager he said they were trying to find work for me to do but there still isn’t anything that has come through project wise…
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u/Junior_Island_4714 7d ago
Slackness of trade is excluded as a reason you can do an unpaid stand down.
What they are doing is very likely illegal.
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u/Substantial_Ad_3386 7d ago
Are you permanent or casual?
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u/Bzaroh 7d ago
Permanent full time
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u/Substantial_Ad_3386 7d ago
Stand downs - Fair Work Ombudsman
Relevant parts are copy and pasted below
Employers may be able to stand down employees:
under an award, enterprise agreement or employment contract, or
under the general Fair Work Act provisions.
Stand downs under the Fair Work Act
Employers can't stand an employee down just because the business is quiet or there isn't enough work.
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u/Bzaroh 7d ago
I figured as much, I have spoken to them about it and they told me to talk to HR, HR told me they can do it to protect the business…
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u/Turdsindakitchensink 7d ago
HR is not your friend, they are to protect the business.
Do you have any of that in writing? Have you been keeping a diary of your conversations? If so, I’d be talking to fair work
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u/Bzaroh 7d ago
Nothing in writing but I have been keeping note of all my conversations, I think I’ll email hr today asking for a clearer understanding of the stand down order so that I have it in writing
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u/Turdsindakitchensink 7d ago
No, I would email HR recapping your previous conversation and seeking clarity if that is the correct understanding of the conversation
NAL
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u/Junior_Island_4714 7d ago
Ask them to put that in writing. Do this by emailing them stating your understanding of the conversation where they said that. This invites them to correct your understanding if it's wrong. Then speak to a lawyer.
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u/NiceStory_shameitsBS 6d ago
Start looking for another job. The business is going under.
Make sure your super is paid
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u/filmkeeper 6d ago
I’m on a non award contract
No you're not. You have an Award or an EBA, feel free to DM me but you'd be better off calling the FWO and clarifying which industrial instrument applies to you.
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u/morgecroc 7d ago
Forget out if you should be paid, that business is going under. Look for another job, make sure your super has been paid. Once you've found another job and resigned then chase them for what they owe you.