Getting your employees to attend to work can be one of the biggest challenges for Aussie employers, and there are Employee Attendance Laws to help protect employers. On the flip side, there can also be a number of reasons why employers DO NOT want employees to attend work. These can include business shutdowns (planned or unplanned – think COVID), or needing to stand people down to resolve workplace issues (for example, while a bullying and harassment investigation is underway) or, during a notice period to protect the business’s confidential information or customer base when a key employee is resigning. Also, many businesses need to close during a seasonal holiday period, like Christmas.
When this happens, managers need to know what they can legally do, and it’s important to get it right from the outset.
So, what are the kinds of situations where employers might lawfully seek to stop workers coming to work, and what does that process look like?
Employee Attendance Laws
- Workplace Shutdowns
A shutdown occurs when an employer decides to temporarily close down all or part of their business for a specified period (for example the New Year period). During a shutdown an employer can direct employees to take annual leave if permitted by:
- their award or enterprise agreement; or
- where the employee is not covered by and award or enterprise agreement – s. 94(5) of the Fair Work Act.
Under Section 94(5), an employer can require an award/agreement-free employee to take paid annual leave but “only if the requirement is reasonable.” Reasonable circumstances include where the employee has accrued excessive annual leave (s. 94(5)(a)), or during a Christmas / New Year shutdown period (s. 94(5)(b)).
Awards and enterprise agreements generally require adequate notice of the shutdown to be given by the employer (i.e. 28 days).
However, neither the Awards (in most circumstances) nor the National Employment Standards (NES) make it clear how to handle situations where employees do not have adequate accrued (paid) annual leave.
In these situations, businesses should start the discussion with affected employees as soon as possible to find a workable solution.
- Workplace Standdowns
A standdown is when an employer directs an employee not to work because they cannot be usefully employed for reasons outside the employer’s control such as an equipment breakdown, industrial action (that is not organised or being participated in by the employer), disasters etc. During a standdown the employees remain employed but are directed not to work. The employer is not required to give the employee notice or pay them during that period unless required under the employee’s contract or an enterprise agreement.
A standdown does not extend to a mere downturn in trade. Instead, if there is slow down in trade, the employer can negotiate with the employees to reduce their hours or take annual leave. If the employees are not open to that, the business may have to consider redundancies.
- Suspension of Employment
A suspension occurs when an employer requires an employee to not attend work, generally because of the need for a workplace investigation into an issue or incident (for example, misconduct, or bullying and harassment). It can also include a period where the employer believes (with evidence) that the employee may not be able to carry out the inherent requirements of the job because of an illness or injury, and the employee is suspended pending a medical examination. Unlike standdowns, an employee is paid during a suspension period.
- Gardening Leave
Gardening leave is where an employee is directed not to attend a workplace and not to undertake any work at all. Generally they are cut off from systems and directed not to contact customers, other employees or competitors. This would typically happen during the notice period when an employee with close relationships with customers or a detailed understanding of key confidential information, resigns or is given notice of termination.
What Should Employers Do?
Before making any decisions on what or how to direct employees to stay away from the workplace, employers need to consider, firstly, the employment arrangements (for example, does the Award or Enterprise Agreement apply). Then managers should consider how the business circumstances align with the above categories and develop a plan of action from there. In all cases, clear and consistent communication is paramount, and starting conversations in a timely manner can be helpful.
Hicksons Workplace Relations team has extensive experience across all employee leave processes and is happy to answer any questions you may have.