In view of the recent extreme weather conditions affecting much of NSW, it is timely to remind members of the stand down and inclement weather provisions in the Fair Work Act 2009 and the Electrical, Electronic and Communications Contracting Award 2010. Some employers have asked if an employee covered by the Award could be stood down without pay because they could not be usefully employed as a result of the storms.

 
The Award does not deal with stand down.  It does deal with inclement weather. The effect of these provisions is that an employee who is stood down or who cannot continue to work because of inclement weather (such as a storm) must be paid “for ordinary time lost through inclement weather whilst such conditions prevail.”
 
An employer who is covered by an Enterprise Agreement that includes provisions for stand down and/or inclement weather must follow the relevant Agreement provision(s) rather than what is stated in the Act or the Award.   
 
Stand down
Section 524 of The Fair Work Act allows an employer to stand an employee down without pay during a period in which the employee cannot be usefully employed because of “industrial action (other than industrial action arranged by the employer), a breakdown in machinery or equipment if the employer cannot be reasonably held responsible for the breakdown, or a stoppage of work for any cause for which the employer cannot be reasonably held responsible.” Before standing the employee(s) down, an employer must make sure that they could not be usefully employed by, for example, transferring to an area where normal work can continue. 
 
Inclement Weather
Clause 25 of the Award deals with inclement weather.  An employer must confer with affected employees (or their representative) about whether the conditions make the continuation of work unsafe or unreasonable in which case the employer can direct the  affected employees to transfer to another location on the same site or another site which is unaffected by the inclement weather. The employer must provide transport where necessary.
 
Conclusion
In a situation like the recent storms, Award covered employees must be paid for time lost due to inclement weather as long as they have not refused to transfer to another site or location not affected by the weather.
 
Community Service Leave
During the recent storms, some employees who are members of the SES or a rural fire brigade for example may have requested a period of Community Service Leave. Section 108 of the Act allows an employee who “engages in an eligible community service activity” to take unpaid leave for the time it takes to engage in the activity (to clear fallen trees for example) as well as reasonable travelling time and rest time. The employee must be a member or have a member like association with an “emergency management body.”    

Gordon Jervis
NECA NSW Industrial Relations Manager