Extreme weather events are becoming more frequent and can significantly disrupt business operations. When employees are unable to continue working because of severe weather conditions, determining whether they are entitled to be paid depends on the applicable award, enterprise agreement, employment contract and, in some circumstances, the Fair Work Act 2009 (Cth).
 
Q  Our firm was affected by the heatwave that hit the Adelaide area over the past few weeks. Because of these extreme weather conditions, our employees were directed to go home when the temperature reached 45 degrees celsius. While this has happened before on the odd occasion, the recent circumstance existed for four working days.  

The employees are covered under the Electrical, Electronic and Communications Contracting Award 2020. Management is not sure with respect to paying the employees for these days because they only completed approximately four hours of work on each day.  

Are the employees entitled to payment for the ordinary hours not worked (because they were sent home by the employer) or can it be considered they were stood down without pay because the extreme weather conditions are considered to be outside the employer’s control? 
 


A  The answer depends first on the provisions of the applicable industrial instrument and then, where relevant, on the stand-down provisions of the Fair Work Act.

 

Inclement weather under the Award

In this situation, the starting point is the Electrical, Electronic and Communications Contracting Award 2020, which contains specific provisions dealing with inclement weather. The Award recognises that employees working outdoors may lose ordinary hours because of severe weather conditions and provides entitlements in relation to ordinary time lost due to inclement weather while those conditions persist.

The Award also allows employers to transfer employees to another work location, either on the same site or at another site, where work can continue safely despite the weather conditions. 
Because the Award contains specific inclement weather provisions, those provisions should be considered before any reliance is placed on stand-down provisions. 

 

Workplace health and safety obligations

Employers have a duty under work health and safety legislation to eliminate or minimise risks to workers so far as is reasonably practicable. In circumstances where temperatures reach extreme levels, it may be appropriate or necessary to cease work or implement alternative working arrangements to protect employees' health and safety. 

Accordingly, directing employees to stop work during extreme heat may be justified from a health and safety perspective. Whether employees are entitled to payment for the resulting loss of hours will depend on the Award and any other applicable industrial provisions. 

 

Alternatives to stand down

Before considering a stand down, employers should assess whether employees can continue to be usefully employed in alternative ways. Options may include:

  • transferring employees to another worksite that is not affected by the weather;

  • assigning administrative, planning or preparatory duties;

  • carrying out work in air-conditioned facilities where appropriate;

  • working remotely where practical; or

  • offering access to accrued leave entitlements by agreement.

The availability of alternative work is a significant consideration when determining whether a stand down is lawful. 

 

Stand-down provisions

Section 524 of the Fair Work Act 2009 permits an employer to stand down employees without pay during a period in which they cannot be usefully employed because of:

  • industrial action not organised by the employer;

  • a breakdown of machinery or equipment for which the employer cannot reasonably be held responsible; or

  • a stoppage of work for any cause for which the employer cannot reasonably be held responsible. 

Extreme weather may, in some circumstances, result in a stoppage of work that is outside the employer's control. However, extreme heat does not automatically justify a stand down. The employer must be able to demonstrate that:

  • there was a genuine stoppage of work;

  • employees could not be usefully employed; and

  • the cause of the stoppage was one for which the employer could not reasonably be held responsible. 

Whether employees can be usefully employed is a question of fact and will depend on the particular circumstances, including whether alternative duties or work locations were reasonably available. 

 

Pay and service during stand down

Where a lawful stand down occurs under section 524, the employer is not required to make payments to employees for the stand-down period. However, employees may still access any accrued leave entitlements in accordance with the applicable rules and agreements. 

 

Enterprise agreements and employment contracts

Employers should also review any applicable enterprise agreement or employment contract. If those instruments contain stand-down provisions, those provisions may apply instead of the general stand-down provisions contained in section 524 of the Fair Work Act. Additional consultation or notice obligations may also apply.

 

Bottom line

Because the employees are covered by the Electrical, Electronic and Communications Contracting Award 2020, the Award's inclement weather provisions should be considered first. 

Those provisions may entitle employees to payment for ordinary time lost due to inclement weather and permit transfer to another worksite where practical. A stand down without pay should only be considered where the requirements of the Award and, where applicable, section 524 of the Fair Work Act have been satisfied and the employees cannot be usefully employed.