As extreme weather events become more frequent, employers face tough decisions on sending staff home. Discover when employers can stand down employees due to unsafe conditions like heat, what pay entitlements apply, and how modern awards, enterprise agreements, and workplace policies come into play.

Q. Over the last few years, our company workforce has been sent home on a number of occasions due to extreme weather events. Last summer was particularly hot, and management is making contingency plans for the upcoming summer months as the weather bureau forecasts more extreme heat.

One of the contingencies being discussed is at what point employees should be sent home and whether employees are entitled to be paid for the downtime. The employees are covered under the Manufacturing and Associated Industries and Occupations Award 2020. Would this circumstance be considered a stand-down due to the extreme weather conditions? 

A. Whether an employee is entitled to payment of wages when they are unable to be usefully employed because of factors outside the employer’s control, such as inclement weather, is subject to the applicable modern award, enterprise agreement or contract of employment. A modern award may provide payment where the employee is unable to perform work due to inclement weather.  

In this case, the Manufacturing and Associated Industries and Occupations Award 2020 does not contain an inclement weather clause; however, the employer may use the flexibility arrangements provisions in the applicable award or enterprise agreement or apply stand-down provisions. 
 

When is it too hot to work? 

While there is no specified temperature beyond which an employee cannot work, all employers have a general duty to address problems with extreme temperatures in the workplace. The primary means of achieving this duty of care is to undertake risk management. Exposure to heat depends on a number of factors, not just temperature. 

  • These factors include: 

  • Humidity 

  • Amount of air movement 

  • Radiant temperature of surroundings 

  • Clothing being worn 

  • Type of physical activity being done 

  • Age and physical fitness of the employee. 

 

Flexibility arrangements – modern awards 

All modern awards include a flexibility term that enables an employer and an individual employee, and/or a majority of employees in a particular enterprise, to amend certain terms of the award through a ‘flexibility arrangement’, provided the employee is not disadvantaged in comparison to the award. For example, the Manufacturing Award (cl 7.1(a)) provides that an employer and an individual employee may agree to, amongst other matters, vary the arrangements for when work is performed. 

There may also be provisions in a modern award that provide flexibility, even in the absence of a flexibility arrangement. Where work cannot continue because of extreme heat, the employer could offer other alternatives to affected employees, subject to the employee’s agreement.  

These alternatives may include:  

  • accessing a bank of rostered days off (RDOs) 

  • taking time off in lieu of overtime 

  • offering access to forms of paid leave, such as annual leave or long service leave. 

 

Inclement weather clause – construction awards 

This is a term in modern awards that apply in the building and construction industry that allows an employee a specified period of time (commonly up to 32 hours per four-week period) when abnormal weather conditions make it either unreasonable or unsafe to continue working in such conditions. Generally, an employee can be transferred to other duties or other sites if practicable and within certain limits. Modern awards that contain an inclement weather clause include: 

  • Building and Construction General On-site Award 2020 

  • Electrical, Electronic and Communications Contracting Award 2020 

  • Mobile Crane Hiring Award 2020 

 
Stand down – Fair Work Act 

The provisions of the Fair Work Act (s.524) prescribe, in general terms, the circumstances in which an employee may be stood down without pay by the employer. However, there is no specific reference to circumstances in relation to inclement weather preventing work from being performed.  
 
To activate the stand-down provisions, it is important for the employer to establish that the employee cannot be usefully employed due to a stoppage of work for any cause for which the employer cannot reasonably be held responsible. The employer sending employees home because of extreme heat events would be justifiable on the grounds that working in such conditions could pose a serious danger to the employees’ health and safety. 

The meaning of the term ‘usefully employed’ is critical in determining whether the employer is justified in applying the stand-down provision to a particular circumstance. While the term is not defined by the Fair Work Act, the employer must show that all possible steps were taken in trying to find useful work. The employer could direct the employees to perform other work within the scope of their contracted duties. For example, if the employees are required to perform administrative duties in relation to their work, the employee could perform this work in an air-conditioned building, if appropriate in the circumstances. 

An employee is not taken to be stood down during a period where the employee is taking paid leave (for example, annual leave, long service leave, a public holiday, or authorised unpaid leave such as unpaid community service leave). A period of stand-down without pay counts as service for the purposes of the Fair Work Act. 

Note: The Fair Work Act does not apply if an enterprise agreement or contract of employment contains provisions that allow for the standing down of employees when they cannot be usefully employed in circumstances that are beyond the employer’s control. 
 

Workplace policy 

Where there is no provision in the applicable modern award or enterprise agreement, the employer may introduce an inclement weather policy to cover circumstances where it is not safe to work because of extreme weather conditions, such as heat, cold, wind or rain. The policy could refer to the flexible work arrangements under the applicable award or, in the case of award/agreement-free employees, available options such as annual leave, or moving to another location (or home) which is unaffected by the extreme weather. The policy could also define the meaning of ‘extreme heat’ or ‘extreme cold’ which could also be considered in conjunction with the company’s workplace health and safety policy. 

 

Bottom line 

Employers should check whether the applicable award or agreement contains terms that provide entitlements when inclement weather prevents the performance of work. A company policy may also assist in detailing the available options when inclement weather intervenes.