QLD - Illegal Stand down?

unwashed00 on 09/05/2020 - 10:00
Last edited 09/05/2020 - 10:06

Me and a few other coworkers are being stood down from end of next week and until further notice. That happened supposdely worldwide to all employess on the bench. Stand down letter says that it's due to coronavirus lack of work but the company had troubles finding projects, there were no new ones in Brisbane in a year. However, the global office reported (yes, pretty much the same day) that they have record growth, revenue, etc. And I'm sure local Australian branch isn't too bad, otherwise the would've qualified for JobKeeper. I see this as a company trying to save costs at the expense of employees.

I've been told that after that I can use my paid annual leave, and from there on - I'm stood down until further notice. My Fair Work Australia web sire research showed that stand down has to be due to real impact, not just any lack of work and it also has to have an end period.

I obviously don't want to work for the company anymore and started looking for other jobs. I'll be taking paid leave from the week after to postpone the standing down and keep cash flow and to give me time to look for jobs.

I am a software developer.

My questions are:

Am right thinking that this is illegal?

Is it practical to contact Fair Work and ask them to step in? What are the potential outcomes here?

My goal would be to have them make me redundant and pay redundancy package (certainly on top of my accrued leave). Is it feasible?

Would the outcome be different if I land a new job before my paid leave runs out?

Is this issue worth pursiung with a lawyer?

Education & Work

Comments

  • RockyRaccoon on 09/05/2020 - 10:54
    +13

    due to real impact, not just any lack of work

    Wouldn't no work be a real impact?

    • unwashed00 on 09/05/2020 - 11:14
      +2

      It's hard to distinguish if lack of projects is due to covid or due to lack of luck selling projects

      • RockyRaccoon on 09/05/2020 - 14:09
        +3

        If its not easy to distinguish this, then good luck in being able to argue (legally) the case you want. It now gets messy and that means detailed legal arguments, is that going to be worth your time and money? Also legal action like that isn't looked on favourably should you look for other employment in the industry.

        Fair? Depending on the real issue, maybe not. But sit on the other side, an employer wants to have a hassle free relationship with employees. To them the possibility of dealing with an employee who they fear likes litigation is just something to avoid. Just like we dont like conflict they dont either.

        • unwashed00 on 09/05/2020 - 14:22

          Thanks, if I can't know for sure, it would be even harder to prove in court. And maybe not even worth taking it to Fair Work.

      • Icecold5000 on 10/05/2020 - 10:45
        +1

        The outcome for both are the same. Maybe look into public service roles if this is an issue.

  • [Deactivated] on 09/05/2020 - 10:56
    +11

    Stand down letter says that it's due to coronavirus lack of work but the company had troubles finding projects, there were no new ones in Brisbane in a year.

    Imagine that, a company that hasn't had a project in over a year reducing their workforce.

    Bloody corporates. Only employing people when there's work.

    My goal would be to have them make me redundant and pay redundancy package (certainly on top of my accrued leave). Is it feasible?

    They're standing you down at the moment, something that is reasonable due to current circumstance and lack of projects for a year. When they are looking to downsize, they will have to pay out redundancies. Until then, what you're asking for is to be released from your employment and be paid to do so.

    • JimmyF on 09/05/2020 - 11:12

      Imagine that, a company that hasn't had a project in over a year reducing their workforce.

      OP is lucky its not a package instead and will have a job to come back to in the future……

    • unwashed00 on 09/05/2020 - 11:16
      +3

      They did have projects and also did have new projects in other states, just not in QLD.

      See, if there's no work for me, they should make me redundant, shouldn't they? Now I see it as they pass on the risks of running a business onto their employees.

      • [Deactivated] on 09/05/2020 - 11:26
        +7

        See, if there's no work for me, they should make me redundant, shouldn't they?

        If you applied that to every business at the moment, every business would be bankrupted from paying out redundancies.

        Concessions have been made across the board. One of the concessions is JobSeeker. If you are not benefitting from JK, you can always apply for JS.

        You do not get to choose to be paid redundancy, get the JS, and have the time to look for a new job.

        • unwashed00 on 09/05/2020 - 11:34
          +4

          On the other hand we have worker's protection for exactly the same reason. Anyway, this seems to be the accepted point across the board, so I'll just move on.

          Exactly the reason why I asked, to validate or invalidate my personal opinion

      • dharmesht on 11/05/2020 - 08:56

        The only reason they don't make you redundant is, if they are hopeful of things getting better in near future. And even if you are paid redundancy, the terms can be set by employer to pay nothing except for normal Annual leave payout. I think best is to keep looking for a new job and not think much about this. Being in IT myself, I have prepared my self mentally, that such situations can come anytime.

  • Hithere on 09/05/2020 - 11:00

    My goal………………….. Is it feasible?

    What did they say when you asked them?

    • unwashed00 on 09/05/2020 - 11:18

      I haven't contacted Fair Work yet but I will on Monday.

      • burningrage on 10/05/2020 - 17:37
        +1

        You obviously missed the joke….

        We shall wait for your reply on this, if you do indeed contact Fair Work.

      • nignucial on 16/05/2020 - 11:03

        How did you go?

  • MrHyde on 09/05/2020 - 11:05
    +12

    Even if the company had no work before COVID hit; they may have had opportunities in the pipeline. In our company, we had massive opps in the pipeline and all of a sudden; they disappeared which meant once our current projects finished; there was nothing new for staff to move onto.

    The impact of that is not immediate (not March or April); but will start to hit from mid May onwards - so from a JobKeeper perspective; not eligible just yet; but will soon.

    IMO, The company has done nothing illegal to stand people down if there is no work. If they fire you, redundancies will have to be paid at that time. If you resign because you have found other work; then no redundancy is applicable since you are the one making the choice to leave the company.

    • unwashed00 on 09/05/2020 - 11:43
      -1

      Well, that seems to be the advice here, so I'll just put my energy toward looking for a new job

    • leiiv on 10/05/2020 - 14:08
      +7

      That is exactly why standing down people without pay should not be permitted without exceptional reasons. Otherwise, there is no point in having the redundancy policy if companies can stand down employee indefinitely.

  • JimmyF on 09/05/2020 - 11:09
    +2

    all employess on the bench. Stand down letter says that it's due to coronavirus lack of work but the company had troubles finding projects,

    Am right thinking that this is illegal?

    Nope

    https://coronavirus.fairwork.gov.au/

    Have a read of the "Standing down employees & business closures" section, pretty sure you fall under this one

    Employers may be able to stand their employees down without pay during the coronavirus outbreak for a number of different reasons. These can include where:

    there’s a stoppage of work due to lack of supply for which the employer can’t be held responsible

    So yes they can stand you down, as you said, you haven't had a new project for a year and haven't had any work to do for the same amount of time I'm guessing.

    And I'm sure local Australian branch isn't too bad, otherwise the would've qualified for JobKeeper.

    Generally Global companies don't get jobkeeper as they don't meet the requirements to get it, which is 50% drop in turn over or 30% if turnover is under $1B.

    Is it practical to contact Fair Work and ask them to step in? What are the potential outcomes here?

    They'll just point you to the websites above and say they'll allowed to

    Time to go hit up jobseeker payments while you wait. Sounds like you have had a good run for a while being on the bench.

    • unwashed00 on 09/05/2020 - 11:19

      Fair Work website says that stand down letter has to have an end date of stand down period. Ours don't have that.

      • JimmyF on 09/05/2020 - 11:47
        +1

        Ok then go back to them and ask what the end date is.

        • unwashed00 on 09/05/2020 - 11:52

          We asked and they didn't tell

          • Zephyrus on 10/05/2020 - 22:23

            @unwashed00: Yeah, go to FairWork and just say that. What will likely happen is that they'll just publish one. I suspect they can't just chain them up indefinitely though, so eventually they have to make you redundant.

  • dizzle on 09/05/2020 - 11:18
    +1

    I don't have all the answers, but you are making a lot of unfounded assumptions to lead you where you want to go:

    Even if they had few projects beforehand, this will still be affecting them finding new projects.

    They may have had record growth, but that could just be from extraordinary growth pre-corona.

    The fact they don't qualify for job keeper could mean the Australian subsidiary ( I think they have to go local rather than global for the financial hardship qualification) had a bad year last year as well, so little growth or decline).

    As for your solutions:

    I don't think Fair Work will push much of this until the crisis is over. There are going to be a lot of these cases for them to sift through and they will likely err on the side of a business being down until they get firm proof. And it would be hard to prove it hasn't had an impact.

    While a company can stand down their employees, it's unlikely they will make a position redundant. They will just hope that you look for a new job and resign so they don't need to pay out.

    If you land a new job before your leave runs out, you will likely have to resign. So they won't have to pay a redundancy.

  • Donaldhump on 09/05/2020 - 11:55
    +1

    Honestly look for another job, or up skill during the quite time. Given we are 10 months into the tax year you are probrably only losing 67 percent etc of what you would earn so not devastating, make the most of the down time and study or freelance / tutor etc , get a contract etc.

  • brokenglish on 09/05/2020 - 12:23
    -2

    Why is it illegal? Why would you call a lawyer?
    The company doesnt want/cannot afford you anymore.
    I guess it’s okay for companies to get their lawyers to sue you for resigning/quitting your job in the future.

    You need to channel this energy elsewhere.
    1. Check if you qualify for JobSeeker NOW! There is a streamlined process for those who were stood down
    2. Login to ATO for early release of super if you desperately need for cash otherwise dont touch it (unless you know how to invest your money better than your super fund)
    3. Yes, Fair Work can help you negotiate better goodbye presents from your employer, e.g. redundancy pay, annual leave. It doesnt matter if you have already found a new job.

    • unwashed00 on 09/05/2020 - 12:25
      -4

      Because generally companies can't just stand down employees. And if they don't want me anymore they should made me redundant.

      • [Deactivated] on 09/05/2020 - 13:59

        Well they can stand you down in this case.
        Once COVID-19 is over they can make you redundant then if they want to do that.

      • RockyRaccoon on 09/05/2020 - 14:03
        +5

        Also they are probably using stand down because they dont know exactly if some of the contracts put on hold may come back. It could be next week, or next month or next year. By standing people down they can start up quickly, plus if the make someone redundant and work returns soon they legally cant re-employ you quickly.

        eg

        The Australian Tax Office identifies the conditions that must be satisfied so that that a redundancy payment is regarded as genuine. One condition is that there is no arrangement between the employer and the employee (or between the employer and another entity (a subsidiary or another employer) for the dismissed employee to be re-engaged after the termination, although this condition would not prevent the former employee from being employed as a contractor.

        • unwashed00 on 09/05/2020 - 14:18

          That's a good point about rehiring

      • Donaldhump on 09/05/2020 - 14:12

        they do want you, just not during covid 19. like the other 1 million unemployed people.
        if you feel so badly burned go get another job

        • unwashed00 on 09/05/2020 - 14:21

          I will be getting another job, that's not a question for me

  • whooah1979 on 09/05/2020 - 14:18

    They’re paying you to do some gardening, exercising or take up a new hobby. That sounds pretty good.

    • unwashed00 on 09/05/2020 - 14:19
      +1

      My problem is that they're not paying and giving me quite a short notice that they're not

      • whooah1979 on 09/05/2020 - 14:22

        Do you get paid while on leave?

        • unwashed00 on 09/05/2020 - 14:24

          Once I run out of my accrued leave, the leave becomes unpaid. Which is exactly what standing down is.

          • whooah1979 on 09/05/2020 - 14:25
            -2

            @unwashed00: So what do you are saying is that you have one more week of work and then you get paid leave.

            • unwashed00 on 09/05/2020 - 14:40
              +1

              @whooah1979: So my paid work ends in a week, then I can either use up my accrued paid annual leave or go straight to unpaid leave.

  • crashloaded on 09/05/2020 - 14:21

    What's your employment contract say?

    • unwashed00 on 09/05/2020 - 14:24

      There's nothing about standing down thus I assume the standard employment legislation applies.

      • crashloaded on 09/05/2020 - 14:32
        +5

        I would ask the employer if they will consider a redundancy package or you will pursue through fair work. I found this;

        "Typically, section 524(1)(c) has applied in situations where natural disasters have destroyed business premises or made it unsafe and dangerous for employees to come to work. However, taking a plain reading of the provision could see it apply to the two circumstances stated above given that the outbreak is due to no fault of employers.

        However, where an employer simply faces a reduction in trade volumes or where it is merely uneconomical to continue to employ staff, it is unlikely this will be considered a “stoppage” of work for the purposes of the legislation.3"

        The employer would have to find a way to prove that the loss of trade is directly related to the pandemic.

        • unwashed00 on 09/05/2020 - 14:41
          +2

          Thanks, that's exactly why I made this post. That's my understanding too but I'm trying to figure out if it's worth pursuing.

          • nignucial on 10/05/2020 - 12:52

            @unwashed00: It depends - they'll have to repay you the lost income during the illegal stand down. (Plus other entitlements)

            • pangwen on 10/05/2020 - 13:07

              @nignucial: Good point, leave entitlements (such as annual leave) appear to accrue as normal during the stand down. So when you finally get let go (or if you resign), then you will have to be paid out the annual leave accrued during the stand down.

  • SlavOz on 09/05/2020 - 20:02

    The company is in no way obligated to share their "record growth, revenue, etc" with you. If they predict work will slow down and it will be uneconomical to pay you, that's their perogative. If you're not satisfied with what you've received go and ask them for better terms. If they refuse you can contact Fairwork but I'd imagine their call centres would be overloaded with people asking whether or not they can sue Qantas for letting them go.

    • unwashed00 on 09/05/2020 - 20:10
      +6

      They are, however, obligated to follow local labour laws and that’s what I’m asking. The new covid standing down provisions are fairly uncertain.

  • miwahni on 09/05/2020 - 23:57

    I don't know if this helps at all, but I have seen a LOT of stand-down letters over the last six weeks and not one of them has a return-to-work date; they all say something vague like "once business re-opens" or similar. So I'm thinking that the FW legislation may have been altered in regard to return dates during Covid 19?

    • unwashed00 on 10/05/2020 - 08:39
      +1

      The whole stand down provision is new, including the return date. Not that it matters much, but it's there in the new covid section.

      • Bullzye on 10/05/2020 - 20:30
        +1

        I am in a similar situation as yours (Software Dev and stood down) but I am getting Job Keepers payment. I was stood down a day before Job Keeper came into effect but the company applied for it afterwards.

        I was told on a at 5:00PM about the standing down decision although I think there is a 3 day notification requirement. I am still unsure about the legality of it all considering my job and role is not affected by COVID and was due to loss in revenue but I guess the new laws allow that. Also, only 3-4 of us were stood down everyone else is still working not sure if that is legal.

        BTW, can you point me to the page where it says about having end date in the stand down letter

        • unwashed00 on 11/05/2020 - 12:47

          Hmm, I'm sure it was here - https://coronavirus.fairwork.gov.au/coronavirus-and-australi…

          But the page has changed since and now has extra info about public holidays and sick leave. While I may be mistaken about end period, but the rest certainly wasn't there.

          • Bullzye on 11/05/2020 - 15:17

            @unwashed00: Since I have been stood down, I have done my fair share of research on this. Your standing down is not lawful. Since your company cannot apply for Job Keepers the new changes do not apply to them which means they can only stand you down if there is an actual stoppage of work.

            Now if you were working on a project with a client who had to stop their work due to COVID then there is a grey area. For example, if you were working on a project for Qantas and now you cant work because their offices are shut down. That being said the onus is still on your company to prove that the stoppage of work was outside their control and you cannot be employed in other roles.

            Even if the company is eligible for Job keepers and has applied for it, they still have to make sure that any Job Keeper enabled instructions are fair and the onus is still on them. The only difference is now, reduction in revenue is a valid reason.

            I would suggest you contact your HR team and request your standing down letter with the reasons. If you were to take it to Fairwork I am fairly positive that the decision will be in your favor. If you have a HR department discuss with them and raise the point about actual stoppage of work vs reduced revenue and may be you wont have to go to Fairwork. As you have mentioned in your post they can make you redundant but you seem to be ok with it so all good.

            • unwashed00 on 11/05/2020 - 15:32

              @Bullzye: We have recieved the stand down letter and wording there is super-vague. All the other information regarding the company well-being globally (annual report, sub-division meetings) and locally (words of my maneger) shows the the affairs are ok.

  • HeWhoKnows on 10/05/2020 - 09:38
    -3

    What are you going to do OP
    Take them to court?

    You will qualify for job keeper allowance for doing sweet FA
    Why are you complaining?

    HOT TIP
    Stick to your softare development and stay away form taking legal action mate
    Nothing posted here will help you

    • pangwen on 10/05/2020 - 10:38
      +6

      "You will qualify for job keeper allowance for doing sweet FA
      Why are you complaining?"

      The OP said "And I'm sure local Australian branch isn't too bad, otherwise the(sic) would've qualified for JobKeeper."

      Therefore, they have not in fact qualified for job keeper allowance for doing sweet FA.

      In addition, if they do not qualify for Jobkeeper, then the new COVID stand down provisions do NOT apply (read the rules, it says it only applies if the employee is entitled to Jobkeeper). Therefore, the original 'normal' stand down rules need to be followed which are stricter than the new ones introduced for Jobkeeper. As the OP notes, the Fair Work site (https://www.fairwork.gov.au/pay/pay-during-inclement-weather…) indicates that for a normal (non COVID) stand down, "employers can't stand an employee down just because the business is quiet or there isn't enough work". The examples that FW gives for a work stoppage (severe/inclement weather or natural disaster) imply that a normal stand down only applies if there would still be work, but it is physically impossible for the employees to do it. Now, if your work has been shut down due to the government not letting you go to work, then the employer may be able to claim this. But if things were just quiet, then it's a more difficult argument.

      • leiiv on 10/05/2020 - 13:56
        +5

        And OP is a software developer. There is almost no reason that it becomes physically impossible for such employees to do their job.

        But the Jobkeeper rules is a bit confusing: if the new COVID stand down provisions only applies if the employee is entitled to Jobkeeper, then why would an employer opt for the stand down instead of getting the Jobkeeper?

        • pangwen on 10/05/2020 - 14:20
          +3

          "if the new COVID stand down provisions only applies if the employee is entitled to Jobkeeper, then why would an employer opt for the stand down instead of getting the Jobkeeper?"

          Porque no los dos?

          Just because the company pays an employee Jobkeeper, doesn't mean that they couldn't still stand them down. If they get them to work when there's no real work to be done, the employer may incur costs and risks that aren't compensated by Jobkeeper (may not be relevant to the OP as a software developer though)
          - Superannuation (payable on hours actually worked, but not on any topup due to JK)
          - Possible safety / workcover risks
          - Possible payroll tax

          Agreed that the OP's situation does sound like the employer is using COVID as a cover for their actions though.

          • Hardlyworkin on 10/05/2020 - 20:53
            +2

            @pangwen: Good advice here OP courtesy of Pangwen.

            If you're seeking a redundancy then no harm in calling out your employer. An email asking for a redundancy as it's not a stand down is a good start.

            • unwashed00 on 11/05/2020 - 12:57
              +1

              @Hardlyworkin: Yes, I plan on that too, but first decided to ask here to get some advice, hear some stories and so on

        • unwashed00 on 11/05/2020 - 12:42
          +1

          Most of us were working from home way before the lockdowns started, so phisically there's no issues working.

  • leiiv on 10/05/2020 - 14:05
    +6

    I have never heard a software developer being stood down. I think your company is taking advantage of the covid-19 situation to avoid paying redundancy package and hoping that new projects will come in soon.

    • unwashed00 on 11/05/2020 - 12:35

      That's what me and my colleagues think. But I've heard of consultants from other companies being stood down too. But again, that does not seem geniune.

  • deadcat on 10/05/2020 - 16:04
    +5

    Get out of the consulting gig mate, and look for contract roles. Accenture, TechOne, etc are all soul sucking places. They overwork staff, and under pay (unless you are high up).

    • unwashed00 on 11/05/2020 - 12:37

      I had a reasonable balance of pay and workload, but actually turned down a contract a month ago because my boss was assuring all us that things are picking up.

  • Trying2SaveABuck on 10/05/2020 - 16:22
    +3

    Fight the power!!!

  • apple2016 on 10/05/2020 - 16:32
    +3

    If the lack of projects is not directly related to covid19, the company cannot sand down employees. Instead they would have to make you redundant…

    • unwashed00 on 11/05/2020 - 12:53

      But then they would incur the costs of redundancy pay and rehiring costs eventually. Why not save at the expense of the employees in order to meet the annual revenue goal? And yes, the local branch is still profitable, just not as per the plan.

  • sarahlump on 10/05/2020 - 17:01
    +1

    you're a software dev, from what I understand the market is still excellent atm for software devs

  • [Deactivated] on 10/05/2020 - 19:50

    There can be a number of ways that revenue could be increased etc, but if there is no work then then jobs are impacted.

    The dirty side of capitalism

  • Homr on 10/05/2020 - 20:51
    -1

    are you getting jobkeeper? If so, its not all bad

    • nickj on 11/05/2020 - 08:04
      +1

      OP already said they were not, because the company is not eligible.

  • [Deactivated] on 11/05/2020 - 00:10
    -1

    You can always try.
    But…. chance to get anywhere with them would be slim. doesn't matter if it's a small business or large corporate, standing down employees are the second last lever to pull in order to save the business.
    I can guarantee you that the accountants of the company would not go down this path if they dont have to. Most companies need to be on hibernation now in order to survive til the end of the tunnel. Businesses have interconnected relationships that not even the cleverest economists could predict.

    Focus on what will get you out of the crisis (ie, look for other opportunities), don't burn the bridge yet. When businesses get back to normal, guess who's gonna get you a job first?

    Most companies would now be on recruitment freeze, if you could afford to "stay on the book", that would probably be the best you could do.

    Good luck.

    • Hardlyworkin on 11/05/2020 - 10:52
      +3

      Why would the chances be slim? OP was stood down and the business doesn't quilify for Jobkeeper so doesn't quilify for the jobkeeper enabling stand down provisions. It's therefore unlikely that the situation would meet s524 of the FW Act. OP either needs to be paid his normal wage or be made redundant if the situation doesn't meet criteria for s524. If OP isn't worried about burning bridges then the law is on their side of they push the matter.

      • unwashed00 on 11/05/2020 - 12:40
        +1

        The bridge was set on fire from the other side, especially so that just a month ago we were all told that things are ok and picking up.

    • unwashed00 on 11/05/2020 - 12:39
      +1

      The business is definitely fine, they just didn't meet last year revenue goal and were not set to meet this year's goal either. But nontheless profitable.

      • TSH on 15/05/2020 - 21:05

        "Oh hey guys, if we get really really lucky and leave you guys grasping at straws for a few more months, we can soon be rolling naked in rolls of money while you dudes can come back begging for positions which we can then fill at a lower pay. Everybody wins!".

        You lucky sob! Where can I sign up to join your wonderful company.

        Love this bull$hit mantra "Were all in this together… until I decide to put you back in your hole mafu<ker!"

        "Were all in this together… until I scrape you off the bottom of my shoe!"
        "Were all in this together… until I scrap that free child care b!tch!"

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