New South Wales Consolidated Acts

ESSENTIAL SERVICES ACT 1988 - SECT 16

16 Stand down of employees

(1) At any time while a proclamation under section 8 or an order under section 10 is in force in relation to an essential service which is being disrupted by industrial action, an employer who is adversely affected by the disruption to the essential service has the right to stand down any employee from duty for any period (including a day or part of a day).

(2) The right conferred by this section may only be exercised in respect of an employee who has not been able to be usefully employed for at least 5 consecutive normal working days.

(3) An employer who exercises the right conferred by this section shall give notice to each employee stood down.

(4) Notice shall be taken to have been sufficiently given to an employee if:

(a) notice in writing has been given to the employee personally or by post or telegram, or

(b) notice has been published on the date of commencement of the period of stand down in a daily newspaper circulating in the area in which the employer’s business is conducted.

(5) An employee who is stood down under this section is not entitled to any salary, wages or other remuneration or allowance for the period of stand down.

(6) Any period of stand down under this section forms part of an employee’s period of employment:

(a) for the purposes of calculating the employee’s entitlement to annual leave, sick leave, maternity leave and long service leave, and

(b) for the purposes of any superannuation or similar scheme which applies to the employee,

but does not form part of the employee’s period of employment for any other purpose.

(7) A period of stand down under this section ceases:

(a) when terminated by the employer, or

(b) when the relevant proclamation under section 8 or order under section 10 ceases to be in force,

whichever occurs first.

(8) The Minister or an industrial organisation which represents employees stood down under this section may apply to the Industrial Relations Commission for an order restraining the stand down.

(9) The Industrial Relations Commission shall hear and determine any application under this section as if the application had been made under the Industrial Relations Act 1996 .

(10) On the hearing of an application by the Minister or an industrial organisation, the Minister or industrial organisation has the onus of proving that the employees concerned should not be stood down.