By Charles Power

Amid this terrible bushfire season, it is inevitable that some workplaces will be disrupted because of damage to premises or machinery. This brings into play the employer’s rights to stand down their employees.

Stand down means placing an employee in a position in which for the time being his rights and duties as an employee and the rights and duties of the employer in relation to him or her are suspended.

However, this can only apply when work cannot usefully be performed by the employee for reasons beyond the control of the employer.

Without a right to stand down an employee being available under legislation, the employment contract, an award or enterprise agreement, the employer has no right to suspend the employee without pay in circumstances where the employee cannot usefully be employed.

In CFMMEU v Ta Ann Tasmania (2019) the Fair Work Commission (FWC) considered the operation of an award clause permitting stand down when an employee cannot usefully be employed because of any breakdown of machinery or any other stoppage of work for any reasonable cause. A reasonable cause is one for which the employer cannot reasonably be held responsible, i.e. the stoppage of work was not a natural and probable consequence of the employer’s actions.

In this case, the employees could not usefully be employed for 10 weeks because machinery was damaged and rendered inoperable by fire. However, the clause contained an exception that prevented it from allowing the deduction of pay “on account of” bushfire.

The FWC ruled the expression “on account of” was concerned with a situation where bushfire was the proximate and direct cause of the relevant employees being prevented from working.

Given the proximate or direct cause of employees being prevented from working at the mill was the fact that the machinery at the mill had been rendered inoperative. The bushfire, which had ceased well before this time, was not the direct cause, but rather only the cause of the cause or the indirect cause. Therefore, the employees could be lawfully stood down under the award clause.