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BUSINESS THROUGH INNOVATION LEGAL 49 NAVIGATING THE STAND-DOWN PROVISIONS BTy Peter Clinch, Principal, Clinch Long Woodbridge Lawyers. he outbreak of COVID-19 has put stress on many pharmacies, as social distancing measures have led to residents remaining at home for work and leisure, decreasing foot traffic and revenue. These unanticipated fiscal pressures have pushed many pharmacy owners to conserve funds where possible, such as through standing down excess staff. However, the act of standing down staff raises its own unique issues and questions. One such question was recently addressed by the Federal Court. On May 18, Justice Geoffrey Flick dismissed a union-led bid to have Qantas workers paid sick leave during the period of stand-down. Some 20,000 Qantas employees were stood down in mid-March in response to the pandemic. Since this time, these workers have been able to access some entitlements, including annual leave, long service leave, and support including the government’s JobKeeper payments, but have been prevented from accessing sick, carer’s and compassionate leave. According to the Fair Work Commission: If an employer stands down an employee during a period in accordance with section 524 of the Fair Work Act 2009, then the employer is not required to make payments to the employee for that period. Section 524 is intended to relieve an employer of the obligation to pay wages to employees who cannot be usefully employed in certain limited circumstances. The Fair Work Act also recognises a period of stand-down as ‘service’. Employees will continue to accrue entitlements to annual leave and personal/carer’s leave under the National Employment Standards, as well as an entitlement to a paid public holiday that falls on a day the employee has ordinary hours of work. Federal Court decision • Qantas workers could access annual leave entitlements, but not sick, carer’s and compassionate leave. • The stand-down power serves two important purposes: • Offering businesses financial relief. • Protecting workers from termination. Justice Flick held that allowing access to sick leave while lawfully stood down because there was a stoppage of work would: “Go against the very object and purpose of conferring those entitlements – namely an entitlement to be relieved from the work which the employee was otherwise required to perform ... If there is no work available to be performed by the employee, there is no income and no protection against that which has been lost.” Important implications for pharmacies • Pharmacies will still be required to pay both annual leave and public holiday pay to employees during stand-down. • Pharmacies will not be required to pay sick, carer’s, or compassionate leave to employees during stand-down. • Sick, carer’s, and compassionate leave will continue to accrue during periods of stand-down. These entitlements can be claimed by employees once they resume work. Since the COVID-19 outbreak, Clinch Long Woodbridge’s employment law team have assisted employers in navigating the stand-down provisions, including advising on employee entitlements and employer duties during a period of stand-down. As restrictions begin to ease and pharmacies begin to bring their stood-down staff back to work, careful preparation should be made to ensure a smooth transition back to regular work. With sadness we advise that Retail Pharmacy’s regular contributor on legal issues, John Simpson, died on May 15, 2020. John was a valued adviser to many of our readers and will be greatly missed. His colleagues Peter Clinch and Stephanie Bellman will continue contributing to the magazine. By Peter Clinch. Principal, Clinch Long Woodbridge Lawyers Peter Clinch is Principal at Clinch Long Woodbridge Lawyers, a Sydney-based law firm with a focus on pharmacy. Peter and his colleague Stephanie Bellman have assisted many pharmacists with a broad range of issues affecting their businesses. Inquiries: pclinch@clw.com.au or 02 92794888. RETAIL PHARMACY • JUL 2020