COVID-19 – Employer Obligations Under the Fair Work Act

Know Your Obligations


Employees engaged on a casual basis can be terminated with immediate effect. Prior to terminating an employee you need to consider whether the employee is truly a casual. Seek advice from the BTL team in the event of uncertainty to avoid facing an unfair dismissal claim or a claim for unpaid wages.

Stand Down

Regardless of whether an employee is engaged on a casual, permanent or fixed term basis s. 524 of the Fair Work Act (FWA) allows employees to be stood down without pay, where an employee cannot be usually employed due to stoppage of work for any cause that the employer cannot reasonably be held responsible. Enterprise agreements or employment agreements may impose additional conditions that must be met prior to standing down an employee. Employers also need to consider whether they can stand down employees using a JobKeeper enabling stand down direction.

The Fair Work Commission (FWC) is authorised to deal with disputes regarding the standing down of employees, therefore great caution is required. In dealing with a dispute, the FWC must take into account the fairness between the parties concerned.

Upon business recommencing, each employee stood down must be offered the opportunity to recommence work in their former role.

Consideration should be given to flexible work arrangements where those can practically be offered.

The Fair Work Ombudsman provides a useful template letter for standing down employees not accessing the JobKeeper scheme.


Section 389 of the FWA provides that a person may be made redundant if:

  1. The employee’s role is no longer available or necessary due to a change in operational requirements; and
  2. The employer has provided a consultation period, if required by a modern award or enterprise agreement.

Employees must receive redundancy entitlements as prescribed by the FWA, calculated in accordance with the duration of their employment.

If in doubt speak to a member of the BTL Employment Team