General current information on requests for flexible working arrangements under the NES is available on the Flexible working arrangements page.

Issues concerning interaction as between a request for a flexible working arrangement under section 65 of the FW Act and stand down must be assessed on a case by case basis. The Fair Work Act JobKeeper provisions didn’t operate subject to the NES (section 789GZ [repealed]).

Note: The Fair Work Commission made changes to a number of awards to increase award flexibility temporarily during the pandemic. The Fair Work Commission can also approve variations of enterprise agreements. To see if an award is affected check the version of the award that was in place at the applicable time.

Note: Under the JobKeeper scheme, qualifying employers that were entitled to receive JobKeeper payments for an eligible employee, could in certain circumstances:

• reduce the employee’s hours or days of work (including to nil hours) – a ‘JobKeeper enabling stand down direction’
• change the employee’s usual duties
• change the employee’s location of work
• make an agreement with the employee to change (but not reduce) their days and times of work and take annual leave, including at half pay.

Go to the Former JobKeeper scheme overview page for information.

Employees are entitled to be paid for public holidays that would otherwise fall during a stand down period (whether a stand down under section 524 or a JobKeeper enabling stand down direction).

To be entitled to be paid for the public holiday an employee needs to have ordinary hours of work falling on that day.

If an employee is authorised to be absent from work, such as on a public holiday, they are not considered to be stood down (or a JobKeeper enabling stand down direction does not apply) for the time they are away.

A qualifying employer who received JobKeeper payments for an eligible employee, needed to pay the employee the higher of the following amounts, each fortnight:
an amount equal to the applicable JobKeeper payment, or
their usual pay for work performed (including any paid leave or public holiday pay).

For more information go to:

• Pay and the former JobKeeper scheme
• Pay, leave and ending employment for legacy employers
• JobKeeper enabling stand down directions.

Note: If an employee’s ordinary hours were validly reduced under an Award COVID-19 Schedule, rather than the Fair Work Act JobKeeper provisions, the employee may only be entitled to payment for absence on a public holiday if their reduced ordinary hours continue to fall on that day.

Annual leave accrues on the employee’s usual hours during a stand down (whether a stand down is under section 524 or was a JobKeeper enabling stand down direction).

Employers can:

• seek an employee’s agreement to take paid annual leave
• in limited circumstances, direct an employee to take paid annual leave.

An employer must not unreasonably refuse to agree to an employee’s request to take paid annual leave.

If an employee takes annual leave that is authorised by their employer, they are not considered to be stood down (or a JobKeeper enabling stand down direction did not apply) for the time they are on leave.

Whether an employer can direct an employee to take annual leave (or agree to take annual leave at half pay) depends on what an applicable award or enterprise agreement says. The Fair Work Commission temporarily varied some awards to provide greater flexibility in relation to taking annual leave. Most of these provisions have now expired. Check your award and find further information at Changes to workplace laws during coronavirus.

Before 28 September 2020, irrespective of any inconsistent terms in an applicable award or enterprise agreement, under the Fair Work Act JobKeeper provisions, a qualifying employer entitled to JobKeeper payments for an eligible employee could:

• request the eligible employee to take paid annual leave (as long as the employee kept a balance of at least 2 weeks) - the employee had to consider such a request and could not unreasonably refuse it
• agree in writing with the eligible employee for them to take annual leave at half pay for twice the length of time.

Employers couldn’t ask their employees to use up their annual leave or long service leave as a condition of them receiving the benefit of the JobKeeper payment.

A qualifying employer who was receiving JobKeeper payments for an eligible employee, needed to pay the employee the higher of the following amounts, each fortnight:

• an amount equal to the applicable JobKeeper payment, or
• their usual pay for work performed (including any paid leave or public holiday pay).

For more information go to:

• Stand down, continuous service and accumulation of leave
• JobKeeper enabling stand down directions
• Leave and the former JobKeeper scheme.

Paid sick and carer’s leave accrues during a stand down (whether a stand down is under section 524 or a JobKeeper enabling stand down direction).

Full-time and part-time employees could take paid sick and carer’s leave (subject to notice and evidence requirements) for hours they were expected to work while under a JobKeeper enabling stand down direction.

As the law currently stands, an employee who has been stood down or given a JobKeeper enabling stand down direction to work less or no hours, is not entitled to use paid sick and carer’s leave for the days or hours that they’ve been directed not to work. This is on the basis of the Full Federal Court decision in CEPU & Anor v Qantas Airways Ltd [2020] FCAFC 205.

A qualifying employer who was receiving JobKeeper payments for an eligible employee, needed to pay the employee the higher of the following amounts, each fortnight:

• an amount equal to the applicable JobKeeper payment, or
• their usual pay for work performed (including any paid leave or public holiday pay).

For more information go to the Leave and the former JobKeeper scheme page.

Casual employees are entitled to 2 days of unpaid carer’s leave per occasion. Full-time and part-time employees can take unpaid carer’s leave if they have no paid sick or carer’s leave left.

As the law currently stands, it is unclear whether an employee who has been stood down or given a JobKeeper enabling stand down direction, is entitled to take unpaid carer’s leave during the days or hours they’ve been stood down. This is on the basis of the Full Federal Court decision in CEPU & Anor v Qantas Airways Ltd [2020] FCAFC 205. Note that taking unpaid carer’s leave during a stand down would, in any case, not usually benefit the employee.

A qualifying employer who was receiving JobKeeper payments for an eligible employee, needed to pay the employee the higher of the following amounts, each fortnight:

• an amount equal to the applicable JobKeeper payment, or
• their usual pay for work performed (including any paid leave or public holiday pay).

For more information go to:

• Leave and the former JobKeeper scheme
• Unpaid carer’s leave.

All employees (including casual employees) are entitled to 2 days of compassionate leave (also known as bereavement leave) per occasion.

Compassionate leave can be taken when a member of an employee's immediate family or household dies, contracts or develops a life-threatening illness or injury.

Full-time and part-time employees receive paid compassionate leave and casual employees receive unpaid compassionate leave.

As the law currently stands, an employee who has been stood down or given a JobKeeper enabling stand down direction to work less or no hours is not entitled to use paid compassionate leave for the days or hours that they’ve been directed not to work. This is on the basis of the Full Federal Court decision in CEPU & Anor v Qantas Airways Ltd [2020] FCAFC 205.

Following the decision in CEPU & Anor v Qantas Airways Ltd, it is unclear whether an employee who has been stood down or given a JobKeeper enabling stand down direction, is entitled to take unpaid compassionate leave during the days or hours they’ve been stood down.

Note that taking unpaid compassionate leave during a stand down would, in any case, not usually benefit the employee.

A qualifying employer who was receiving JobKeeper payments for an eligible employee, needed to pay the employee the higher of the following amounts, each fortnight:

• an amount equal to the applicable JobKeeper payment, or
• their usual pay for work performed (including any paid leave or public holiday pay and noting that the employee is not entitled to take paid compassionate leave for the days or hours they’ve been stood down).

For more information go to:

• Leave and the former JobKeeper scheme
• Compassionate & bereavement leave.

Under the Fair Work Act, employees dealing with the impact of family and domestic violence could:

• take unpaid family and domestic violence leave
• request flexible working arrangements
• take paid or unpaid sick or carer’s leave, in certain circumstances.

As the law currently stands, it is unclear whether an employee who had been stood down or given a JobKeeper enabling stand down direction, was entitled to take unpaid family and domestic violence leave during the days or hours they’ve been stood down. This is on the basis of the Full Federal Court decision in CEPU & Anor v Qantas Airways Ltd [2020] FCAFC 205.

Note that taking unpaid family and domestic violence leave during a stand down would, in any case, not usually benefit the employee.

A qualifying employer who was receiving JobKeeper payments for an eligible employee, needed to pay the employee the higher of the following amounts, each fortnight:

• an amount equal to the applicable JobKeeper payment, or
• their usual pay for work performed (including any paid leave or public holiday pay).

For more information go to:

• Leave and the former JobKeeper scheme 
• Unpaid family and domestic violence leave before the 2023 changes

As the law currently stands, it is unclear whether an employee who has been stood down or given a JobKeeper enabling stand down direction, is entitled to take unpaid parental leave (or other forms of related unpaid leave entitlements under Division 5 of Part 2-2 of the Fair Work Act, namely, unpaid special parental leave, unpaid no safe job leave and unpaid pre-adoption leave) during the days or hours they’ve been stood down. This is on the basis of the Full Federal Court decision in CEPU & Anor v Qantas Airways Ltd [2020] FCAFC 205.

Following the decision in CEPU & Anor v Qantas Airways Ltd, employees who are stood down or were given a JobKeeper enabling stand down direction are probably not entitled to use paid no safe job leave (section 81A of the Fair Work Act) during the days or hours they’ve been stood down.

A qualifying employer who was receiving JobKeeper payments for an eligible employee, needed to pay the employee the higher of the following amounts, each fortnight:

• an amount equal to the applicable JobKeeper payment, or
• their usual pay for work performed (including any paid leave or public holiday pay).

An employer wasn’t entitled to JobKeeper payments and a JobKeeper enabling stand down direction wasn’t authorised during relevant fortnights when the employee was receiving ‘parental leave pay’ and ‘dad and partner pay’ under the Paid Parental Leave Act 2010.

For more information go to:

• Leave and the former JobKeeper scheme 
• Parental leave

Note: This is the FWO’s preferred view of how section 117 of the Fair Work Act applies when an employee has been stood down or given a JobKeeper enabling stand down direction. There is unlikely to be any certainty about this view unless the matter is settled by a superior court. Customers may wish to seek independent advice. An applicable industrial instrument or employment contract may have different terms about notice or stand down that could affect this information.

An employer can dismiss an employee during a stand down, whether a stand down under section 524 or while a JobKeeper enabling stand down direction applied. The usual rules about ending employment apply, for example, rules about unfair dismissal, general protections, and redundancy.

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

Notice

The notice period can run concurrently with a period of stand down without pay or while a JobKeeper enabling stand down direction applied.

An employee who has been stood down without pay is not entitled to payment during the notice period (subject to any entitlement to annual leave, long service leave or public holiday pay arising).

A qualifying employer who was receiving JobKeeper payments for an eligible employee during the notice period, needed to pay the employee the higher of the following amounts, each fortnight:

• an amount equal to the applicable JobKeeper payment, or
• their usual pay for work performed (including any paid leave or public holiday pay).

Employees may become entitled to payments for annual leave, long service leave or public holidays falling during the notice period. 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 are not entitled to use paid sick and carer’s leave, or paid compassionate leave, during the stand down (see above in relation to the effect of CEPU & Anor v Qantas Airways Ltd on other types of leave).

PILN

If PILN is provided, the employment ends and the employee does not remain employed through the minimum period of notice. PILN is based on the employee’s full rate of pay and usual hours as if they hadn’t been stood down or given a JobKeeper enabling stand down direction. For example, an employee who is entitled to 3 weeks' notice will get 3 weeks' pay at their full rate for their usual hours.

JobKeeper payments were not included when calculating PILN. However, an eligible employee of a qualifying employer in the JobKeeper scheme that received PILN 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:

• ATO - JobKeeper Payment Types
• JobKeeper enabling stand down directions
• Notice and final pay
• Use our Notice and Redundancy Calculator to calculate notice and redundancy entitlements.

Some employers may need to make employees’ positions redundant in response to a business downturn. The usual rules about redundancy (such as consultation) still apply.

If an employee’s job is made redundant, their employer may have to give them redundancy pay, and any other entitlements owed to them, such as PILN or payment for untaken annual leave.

Where an employee has been stood down without pay or was given a JobKeeper stand down direction, redundancy pay under the NES is calculated based on the employee’s base rate of pay for their ordinary hours of work (as if they had not been stood down or given the direction).

For more information go to:

• JobKeeper enabling stand down directions
• Notice and final pay
• Use our Notice and Redundancy Calculator to calculate notice and redundancy entitlements.

Most employees' entitlements to long service leave come from long service leave laws in each state or territory. Other employees are entitled to long service leave under the NES (section 113).

An employee is taken not to be stood down (or a JobKeeper enabling stand down direction did not apply) during any period of long service leave.

If a qualifying employer was receiving JobKeeper payments on behalf of an eligible employee who took long service leave, they needed to pay the employee the greater of:

• an amount equal to the applicable JobKeeper payment, or
• their usual leave payment.

For more information and a list of the long service leave agencies in the states and territories go to Long service leave.

Note: On 25 March 2020, the New South Wales Government amended the state’s Long Service Leave Act to allow for greater flexibility during the outbreak of coronavirus. For more information, visit the NSW State Government website.