Stand down employees at private school invalidated

Many employers have sought to stand down parts of their workforce without pay in response to the changing environment created by COVID-19. Strict requirements apply to do so validly under the Fair Work Act 2009 (FW Act). The recent Peninsula Grammar School decision demonstrates the Fair Work Commission's approach of invalidating stand downs based on a mere reduction in available work.

Section 524(1)(c) of the FW Act allows employers to stand down employees without pay if they "cannot be usefully employed" in circumstances where there is "a stoppage of work for any cause for which the employer cannot reasonably be held responsible." The Peninsula Grammar School's decision to stand down two classroom assistants and a library technician under section 524 during Melbourne's Stage 4 lockdown was successfully challenged by the Independent Education Union of Australia.