Whatever your views on climate change, extreme weather events are happening more frequently and lasting longer. When staff is sent home early over a number of days, is the employer obligated to pay for a full day?

Q. Our firm was affected by the heatwave that hit the Adelaide area. Because of these extreme weather conditions, our employees were directed to go home when the temperature reached 45 degrees C. 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. Whether an employee is entitled to payment of wages when he or she is unable to be usefully employed because of factors outside the employer’s control, such as inclement weather, is subject to the applicable modern award or 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 Electrical, Electronic and Communications Industry Award 2020 provides that an employee will be entitled to payment for ordinary time lost through inclement weather while such conditions prevail. The provision allows the employer to transfer employees to another site that is not affected by inclement weather. In the absence of an inclement weather provision in the applicable modern award or enterprise agreement, the employer may use the flexibility arrangements provisions in the relevant industrial instrument, or apply stand-down provisions.  

 

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.   

There may also be provisions in a modern award that provide flexibility, even in the absence of a flexibility arrangement. Where an employee cannot attend work because of flooding, 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. 

 

Stand-down 

The provisions of the Fair Work Act 2009 prescribe, in general terms, the circumstances in which an employee may be stood down without pay by the employer, although there is no specific reference to circumstances in relation to inclement weather preventing work from being performed.  

To activate the stand-down provisions of the Act (s524), it is important for the employer to establish the employee cannot be usefully employed because of 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 without pay under the Fair Work Act during a period where the employee is taking paid leave (eg 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 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.