This is a quick guide to employee rights in situations where an employee might be sent home, sometimes against their wishes, and whether or not the employer must continue to pay them.
Suspension – employee rights
An employee may be suspended from work whilst an investigation takes place into alleged misconduct. However, they must continue to receive full pay whilst on suspension.
An employee can’t be suspended without pay as a punishment for misconduct.
If an employee has conducted themselves inappropriately or unlawfully, the employer may take appropriate steps to dismiss them.
Public sector employees may be suspended under specific terms for particular circumstances as governed by the relevant state, territory or federal public sector employment legislation.
Stand Down – employee rights
The Fair Work Act 2009 sets out the circumstances in which an employer may stand-down their employee without pay:
- Equipment break down that is not reasonably attributable to the employer,
- Natural disaster such as floods, bushfires or cyclones, or
- Industrial action.
The reason for the stand down must be out of the employer’s control. An employee can’t be stood down without pay simply because there is not enough work or due to a decline in business. Nor can employers stand down an employee when they are on leave.
Receiving leave pay while on stand down
Employers and employees can negotiate for the employee to take paid leave such as annual leave whilst on stand-down. Alternatively, they can negotiate other work arrangements, such as working from home or another site.
Does the Fair Work Act apply to me?
The Fair Work Act 2009 applies to most Australian employees.
- In Victoria: all employees except law enforcement officers and executives in the public sector
- In the Northern Territory: all employees except members of the Police Force
- In the Australian Capital Territory: all employees
- In New South Wales, Queensland and South Australia: employees of private enterprise
- In Tasmania: employees of private enterprise and local government
- Employees of the Commonwealth or a Commonwealth authority
- Waterside employees, maritime employees and flight crew officers in interstate or overseas trade or commerce
State legislation protecting employee rights applies to employees outside of this list.
Shutdowns – employee rights
A shut down is when the workplace or business closes during a holiday or slow period of the year, such as over Christmas.
Employees’ awards or registered agreements will set out what pay is available to them during a shut down period. Depending on the terms of the award or agreement, an employer may be able to direct an employee to take paid or unpaid annual leave during the shut down period.
Inclement (severe) weather – employee rights
Inclement weather is weather that makes it unsafe or unreasonable for employees to continue working. Awards or registered agreements can set out what sort of weather constitutes inclement weather and what the procedures are for employees and employers when it occurs.