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 under section 524 of the Fair Work Act. 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.

An employee’s employment can end during a stand down. This can happen by:

• the employee resigning, or
• the employer dismissing the employee.

The usual requirements on ending employment such as giving notice and unfair dismissal still apply.

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

An employee’s employment ends at the end of the notice period, which may be during or after the stand down. If an employer pays the employee in lieu of notice, their employment ends immediately.

Pay

An employee doesn’t need to be paid during a stand down under the Fair Work Act unless they’re taking a paid form of authorised absence such as annual leave, long service leave or public holidays.

Pay during notice period

An employee gets paid the same during the notice period as if they hadn’t given notice.

This means that an employee doesn’t get paid during a notice period that runs at the same time as a stand down under the Fair Work Act. However, the employee will get paid if the notice period coincides with annual leave, long service leave or a public holiday.

Pay in lieu of notice

An employer can choose to dismiss an employee by paying out the notice period instead of requiring the employee to stay employed during their notice period. This is known as pay in lieu of notice.

If pay in lieu of notice is given, the employment ends immediately. Pay 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.