Weathering the storm: employer’s guide to handling cyclonic disruptions

Employers in Queensland and northern New South Wales are facing significant challenges associated with Tropical Cyclone Alfred. In addition to protecting businesses, houses, and property, employers need to work through the legal and practical aspects of managing their businesses and employees during this challenging time.

So, how should businesses navigate rights and obligations under the Fair Work Act 2009 (FW Act), modern awards, enterprise agreements, and Work Health and Safety (WHS) laws?

Here, we outline what your employer obligations are during emergencies, why comprehensive management plans are a must for businesses, and how preparing for the worst can save your business more than money.

1. What are the stand-down provisions in Australia?

The FW Act sets out the circumstances in which an employer can stand down employees without pay. As you would expect, these circumstances are limited as the impacts on employees of being without pay, even for short periods, can be significant. It’s important to note, however, that the provisions of the FW Act don’t apply if the employee’s enterprise agreement or employment contract contains a provision dealing with stand-downs. In these circumstances, the terms outlined in the enterprise agreement or contract apply.

2. When can I stand down employees?

Under s524 of the FW Act, employers may stand down employees when a stoppage of work occurs due to circumstances beyond the employer’s control. In cases like Cyclone Alfred, the trigger point for a lawful stand down is the employee being unable to perform their duties because of the disruption. If the employee is still able to carry out their tasks, they cannot be stood down.

3. What about payroll: do I pay my employees during stand-down periods?

It’s often the first thing your employees will think about in this situation – and rightly so, it’s their livelihood – so how does paying your staff work during emergency events? A frequent concern for employers during emergencies is the management of staff and their pay. Events like natural disasters or equipment failures may permit employers to stand down employees without pay.

Pursuant to section 524 of the Fair Work Act 2009 (Cth) (FW Act), an employer may stand down an employee if the employee cannot be usefully employed due to:

• Industrial action (not organised or engaged in by the employer);
• Machinery or equipment breakdowns for which the employer is not responsible; or
• Work stoppages that are caused by factors outside the employer’s reasonable control.

Despite the sudden nature of emergencies, it’s advisable to inform employees in writing about their stand-down status and the reasons for it. Initially, verbal notification can be given, followed by an email or letter. If an employee is lawfully stood down, the employer isn’t obligated to pay for the stand-down period, but staff can be offered the option to take paid annual leave during the stand-down period to mitigate financial difficulties.

4. What’s the difference between a workplace closure and an employee’s inability to travel?

It’s important to differentiate between a circumstance where a workplace is forced to close (and an employee being unable to be usefully employed) and an employee’s inability to travel to work. If the business is unable to operate due to the cyclone, the employer may stand down employees. However, if the workplace is still able to operate, but employees are unable to safely reach the workplace due to weather-related issues (such as flooding or road closures), the stand-down provisions wouldn’t apply. This likely has little practical implication as the employees won’t have an entitlement to be paid as they’re unable to attend work to perform their duties. Employees can apply to use accrued paid leave entitlements in these circumstances.

5. How do being unable to be usefully employed and having work impacted differ?

Employees can only be lawfully stood down without pay if they can’t be usefully employed. In many situations, this is straightforward, but it can be less clear when there are alternative ways for the employee to continue working. For example, an employee performing administrative tasks may still be able to work from home, even if weather conditions prevent them from working from their usual place of work.

6. Is there a distinction between a stand-down and inclement weather?

A small number of modern awards, in particular in construction-related industries, contain inclement weather provisions, and it’s important to understand their interaction with the FW Act.

Common core principles:

1. Definition of inclement weather: all three awards similarly define inclement weather, referring to extreme or abnormal weather conditions, such as heavy rain, hail, extreme cold, high winds, or severe dust storms that render it unsafe or unreasonable for employees to continue working.
2. Conference procedure: employers are required to confer with employees (or their representatives) within a reasonable time frame, no more than 60 minutes, to decide if the weather conditions qualify as inclement weather.
3. Transfer of work site: if the weather makes it unsafe to work at a particular location, employees can be moved to another location on the same site or to another site that isn’t affected by the weather.

While the core principles are consistent across these awards, there are important differences employers need to be aware of when deciding whether inclement weather provisions are applicable. For instance, under the Plumbing and Fire Sprinklers Award 2020 – clause 21.11, employees are only entitled to inclement weather provisions if the weather event occurs after they’ve already commenced work. Additionally, employees must remain at work until the conference referred to in clause 21.11(b) has taken place to be eligible for payment under clause 21.11. If you notify the employee that they’re unable to be usefully employed and stand them down before they attend work, the inclement weather provisions won’t apply.

We encourage clients who employ people under the Electronic and Communications Contracting Award 2020, the Building and Construction General On-site Award 2020, and the Plumbing and Fire Sprinklers Award 2020 to reach out to our friendly team of workplace advisors to discuss the interaction between the two.

7. How do enterprise agreements impact this?

As mentioned earlier, the stand-down provisions in enterprise agreements can affect the applicability of s524 of the FW Act. Employers should review their enterprise agreement to determine if it addresses weather events differently from the award.

8. Can employees take personal or carer’s leave during a stand-down?

All permanent employees have the right to take paid personal carer’s leave in certain circumstances. Employees may be entitled to take personal or carer’s leave during this emergency event if they’re unwell or need to care for an immediate family or household member affected by the emergency. This includes situations where a dependent is injured, unwell, or requires support due to the impact of the cyclone and extends to circumstances where a child of an employee requires care and support due to school closures.

Employers should ensure that employees notify them as soon as practicable and provide any required documentation, such as a medical certificate or statutory declaration, in line with company policy and workplace legislation.

9. Preparing for the cyclone: what are the key steps for businesses?

To ensure your business is prepared for the approaching cyclone and that you comply with all relevant laws, take the following steps:

1. Assess safety risks: immediately assess the potential risks the cyclone poses to your workplace and employees. Put measures in place to mitigate these risks, including evacuations or closures if necessary.
2. Check your rights: check enterprise agreements and contracts to understand your obligations regarding stand-downs, inclement weather, and paid leave entitlements.
3. Communicate with employees: inform your employees about the potential impact of the cyclone and any temporary changes to work arrangements, including stand-downs, paid leave options, and safety measures. Do this early and keep communication open.
4. Ensure compliance with WHS obligations: make sure your workplace is compliant with WHS laws by providing a safe environment, informing employees of potential hazards, and implementing clear emergency procedures.
5. Keep up to date with government guidance: state and local governments will continue to release guidance and information as the cyclone nears landfall. It’s important to be aware of this guidance as it will allow you and your team to stay safe.

As the cyclone approaches, taking prompt and well-informed action is crucial to both safeguarding your employees and meeting your duty of care obligations under employment laws. By understanding your responsibilities around stand-downs, paid leave, and employee safety, you can effectively manage the impact of the cyclone while ensuring your workplace remains productive, safe, and legally compliant.

How can Citation HR help?

For our clients, if any of this information has raised any questions about how to manage an employer stand-down or you have another workplace matter you need assistance with, please reach out to our workplace relations experts via our 24/7 HR Advice Line.

About our author

Tasha Najmudeen is a Workplace Relations Consultant at Citation Group. She has an interest in all things legislation and ER/IR related and regularly provides advice on workplace matters to find solutions for clients.