Australia is well-known for its weather extremes, particularly during the summer months where the temperatures can rise quickly.
If you have employees who are required to work outdoors in the elements, what entitlements apply should there be a requirement to send them home during an extreme weather event?
Are employees entitled to payment for the ordinary hours that they have not worked due to having been sent home by their employer or can they be stood down without pay where severe weather conditions (which make it unsafe for work to continue) are outside of the employer’s control?
An employee’s entitlement to payment of wages when they are unable to be usefully employed because of factors outside the employer’s control (such as extreme weather) will be subject to the applicable modern award, enterprise agreement or contract of employment.
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 a weather event (such as flooding), an employer could offer other alternatives to affected employees, subject to the employee’s agreement. Such alternatives may include:
- accessing a bank of rostered days off
- taking time off in lieu of overtime
- offering access to forms of paid leave, such as annual leave or long service leave.
The Fair Work Act 2009 prescribes the circumstances in which an employee may be stood down without pay by the employer, however there is no specific reference to circumstances which are related to inclement weather.
To activate the Fair Work stand-down provisions, there is a requirement for an employer to establish that an employee cannot be usefully employed because of a stoppage of work for any cause for which the employer cannot reasonably be held responsible.
The meaning of the term ‘usefully employed’ is critical in determining whether an employer is justified in applying the stand-down provision to a particular circumstance. The employer would be required to demonstrate that all possible steps were taken in trying to find useful work prior to standing down an employee. A period of stand-down without pay counts as service for the purposes of the Act.
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