This is the Fair Work Ombudsman’s preferred view of how section 117 of the Fair Work Act 2009 applies when an employee has been stood down. There is unlikely to be any certainty about this view unless the matter is settled by a superior court. You may wish to seek independent advice.

An applicable industrial instrument or contract of employment (or other legislation) may have different terms about notice or stand down that could affect this information.

On 27 November 2020, the Full Federal Court of Australia confirmed that an employee who has been stood down under the Fair Work Act can’t take paid sick and carer’s leave or compassionate leave. On 21 May 2021, the High Court of Australia refused an application for special leave to appeal this decision. The information in this article remains accurate. You can read the Full Federal Court’s decision at CEPU & Anor v Qantas Airways Ltd [2020] FCAFC 205.

There were 3 kinds of stand down under the Fair Work Act:

• a stand down by an employer under section 524 of the Fair Work Act, an enterprise agreement or a contract of employment (general stand down)
• a JobKeeper enabling stand down direction by a qualifying employer under section 789GDC [repealed] of the Fair Work Act
• a JobKeeper enabling stand down direction by a legacy employer under section 789GJA [repealed] of the Fair Work Act.

The JobKeeper scheme ended on 28 March 2021. The information in this article about the JobKeeper scheme and JobKeeper enabling stand down directions stopped applying from 29 March 2021.

While businesses and employees adjust to the JobKeeper scheme ending, information about the rules that applied during the JobKeeper scheme continues to be available. This is so you can continue accessing this information for historical and other purposes.

Find out more at Former JobKeeper scheme.

Employers can still stand down employees under section 524 of the Fair Work Act, an enterprise agreement or a contract of employment (general stand down). The information about general stand down in this article has not changed.

Rules about notice of termination during the 3 types of stand down are set out below.

General stand down

Employers may tell employees not to work during a period when they can’t be usefully employed for reasons outside the employer’s control, such as severe and inclement weather, equipment breakdown, industrial action or a government shutdown. This is called stand down.

During a stand down an employee stays employed but the employer isn't required to pay the employee.

For more information go to:

• Pay during inclement or severe weather & natural disasters
• Stand down during coronavirus
• Stand downs

Employee resigns

An employee can resign during a stand down.

When this happens they need to give their employer any required notice. Employees should check the relevant award, enterprise agreement or contract of employment for rules about giving notice.

Any employee notice period can run at the same time as a stand down.

During the notice period an employee gets paid the same as if they hadn’t given notice. This means that an employee is not usually paid during a notice period that runs at the same time as a stand down. However, an eligible employee of a qualifying employer who was in the JobKeeper scheme had to be paid at least an amount equal to the applicable JobKeeper payment for any JobKeeper fortnight during which they remained employed for any part of the fortnight.

Employees may become entitled to payments for annual leave, long service leave or public holidays falling during the notice period because employees on leave that is authorised by their employer or who are away on an authorised absence aren’t considered to be stood down for the time they’re away.

As the law currently stands (on the basis of the Full Federal Court decision in CEPU & Anor v Qantas Airways Ltd [2020] FCAFC 205), employees who are stood down without pay are not entitled to use paid sick and carer’s leave, or paid compassionate leave, for the days or hours during which they have been stood down.

The employment ends at the end of the notice period.

For more information go to:

• Resignation & notice
• JobKeeper wage subsidy scheme
• Pay & the JobKeeper scheme
• Pay, leave & ending employment for legacy employers
• Stand down during coronavirus

Employer dismisses employee

An employer can dismiss an employee during a stand down. The usual rules about ending employment apply, including rules about unfair dismissal, general protections, unlawful termination and redundancy.

If an employer dismisses an employee during a stand down, they need to give notice in writing (some exceptions apply).

An employer can choose to:

• give the minimum period of notice
• pay out the notice period (also known as payment in lieu of notice), or
• give a combination of the two.

If an employee who has been stood down without pay is given notice:

• the notice period runs at the same time as the stand down
• the employee is usually not paid during the stand down
• their employment ends at the end of the notice period.

However, an eligible employee of a qualifying employer who was in the JobKeeper scheme had to be paid at least an amount equal to the applicable JobKeeper payment for any JobKeeper fortnight during which they remained employed for any part of the fortnight.

Employees may become entitled to payments for annual leave, long service leave or public holidays falling during the notice period because employees on leave that is authorised by their employer or who are away on an authorised absence aren’t considered to be stood down for the time they’re away. As the law currently stands (on the basis of the Full Federal Court decision in CEPU & Anor v Qantas Airways Ltd [2020] FCAFC 205), employees who are stood down without pay are not entitled to use paid sick and carer’s leave, or paid compassionate leave, for the days or hours during which they have been stood down.

If payment in lieu of notice is provided, the employment ends and the employee does not remain employed through the minimum period of notice. The payment in lieu of notice is based on the employee’s full rate of pay and usual hours as if they hadn’t been stood down. For example, an employee who is entitled to 3 weeks' notice gets 3 weeks' pay at their full rate for their usual hours.

Employers should check the relevant award, enterprise agreement or contract of employment for rules about giving notice and stand down.

JobKeeper payments weren't included when calculating payment in lieu of notice.

An eligible employee of a qualifying employer in the JobKeeper scheme who received payment in lieu of notice was entitled to receive at least an amount equal to the applicable JobKeeper payment for any JobKeeper fortnight during which they remained employed for any part of the fortnight.

For more information go to:

• Notice of termination & redundancy pay
• JobKeeper wage subsidy scheme
• Pay & the JobKeeper scheme
• Pay, leave & ending employment for legacy employers
• ATO website - Paying your eligible employees
• Stand down during coronavirus

JobKeeper stand down

The JobKeeper scheme ended on 28 March 2021. The JobKeeper scheme and JobKeeper enabling stand down directions stopped applying from 29 March 2021. This information is provided for historical and other purposes.

The Fair Work Act JobKeeper provisions enabled qualifying employers to give eligible employees a direction to reduce their hours or days of work (including to no hours) in certain circumstances. This was called a JobKeeper enabling stand down direction.

The JobKeeper provisions also enabled legacy employers to give employees who they previously received JobKeeper payments for, a direction to reduce their hours in certain circumstances. The direction could only start on or after 28 September 2020. This is was called a JobKeeper enabling stand down direction. Different considerations applied to directions given by legacy employers than those by qualifying employers.. All JobKeeper enabling stand down directions stopped applying by 29 March 2021.

For more information go to:

• JobKeeper enabling stand down directions
• JobKeeper directions and agreements for legacy employers

Employee resigned

An employee could resign when a JobKeeper enabling stand down direction applied to them.

When an employee resigns, they need to give their employer any required notice.

An employee's notice could run at the same time as a JobKeeper enabling stand down direction and any rostered work. Employment ended at the end of the notice period, or earlier if the employer and employee agree.

During the notice period an employee got paid the same as if they hadn’t given notice. For an eligible employee of a qualifying employer in the JobKeeper scheme, this was the higher of the following amounts, each fortnight:

• the amount of the applicable JobKeeper payment, or
• their usual pay for work performed (including payments for any paid leave, penalty rates or public holidays).

As the law currently stands (on the basis of the Full Federal Court decision in CEPU & Anor v Qantas Airways Ltd [2020] FCAFC 205), an employee who hadbeen given a JobKeeper enabling stand down direction to work fewer or no hours wasn’t entitled to use paid sick and carer’s leave or paid compassionate leave for the days or hours that they were directed not to work.

An eligible employee of a qualifying employer in the JobKeeper scheme was entitled to receive at least an amount equal to the applicable JobKeeper payment for any JobKeeper fortnight during which they remained employed for any part of the fortnight.

For more information go to:

• Resignation & notice?
• JobKeeper wage subsidy scheme
• Pay & the JobKeeper scheme
• Pay, leave & ending employment for legacy employers
• Ending employment and redundancy during coronavirus

Employer ends employment

An employer could dismiss an employee while a JobKeeper enabling stand down direction applied to the employee. The usual rules about ending employment applied, for example, rules about unfair dismissal, general protections, unlawful termination and redundancy.

When an employer dismisses an employee, they need to give notice in writing (some exceptions apply).

An employer can choose to:

• give the minimum period of notice
• pay the employee instead of giving the minimum period of notice (also known as payment in lieu of notice), or
• give a combination of the two.

Notice could run at the same time as a JobKeeper enabling stand down direction and any rostered work. The employee’s employment ended at the end of the notice period.

During the notice period an employee continues to get paid the same as if they hadn’t been given notice. For an eligible employee of a qualifying employer in the JobKeeper scheme, this was the higher of the following amounts, each fortnight:

• the amount of the applicable JobKeeper payment, or
• their usual pay for work performed (including payments for any paid leave, penalty rates or public holidays).

As the law currently stands (on the basis of the Full Federal Court decision in CEPU & Anor v Qantas Airways Ltd [2020] FCAFC 205), an employee who was given a JobKeeper enabling stand down direction to work fewer or no hours wasn’t entitled to use paid sick and carer’s leave or paid compassionate leave for the days or hours that they were directed not to work.

An eligible employee of a qualifying employer in the JobKeeper scheme was entitled to receive at least an amount equal to the applicable JobKeeper payment for any JobKeeper fortnight during which they remained employed for any part of the fortnight.

If payment in lieu of notice was provided, the employment ended and the employee didn’t remain employed through the minimum period of notice. The payment in lieu of notice was based on the employee’s full rate of pay and usual hours and days of work (as if the JobKeeper enabling stand down direction hadn’t been given). For example, an employee who was entitled to 3 weeks' notice got 3 weeks' pay at their full rate for their usual hours.

JobKeeper payments weren’t included when calculating payment in lieu of notice.

An eligible employee of a qualifying employer in the JobKeeper scheme who received payment in lieu of notice was entitled to receive at least an amount equal to the applicable JobKeeper payment for any JobKeeper fortnight during which they remained employed for any part of the fortnight.

For more information go to:

• Notice and final pay
• JobKeeper wage subsidy scheme
• Pay & the JobKeeper scheme
• Pay, leave & ending employment for legacy employers
• Ending employment and redundancy during coronavirus
• ATO website - Paying your eligible employees

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