What is Inclement Weather?
The industry award covers employers throughout Australia in the on-site building, engineering and civil construction industry and their employees. Workforce Advisory specialises in working with employers in the building and construction industry. This depth of experience makes us well-placed to assist you in managing your business.
Employers must have a sound knowledge of the Inclement Weather entitlements within the Award.
A copy of the full text of the Award can be found on the FWO website here. It is important to note that if you are an employer whose business is covered by an enterprise agreement, the Award may be read in conjunction with both the agreement and the Award, the Award alone or the agreement alone. Workforce Advisory can assist you with the application of your agreement.
A Guide to Inclement Weather provisions
Inclement Weather is a concept unique to the building and construction industry. Inclement Weather refers to the existence of abnormal climatic conditions during which it is not safe or reasonable for employees exposed to those conditions to continue working.
Similar Inclement Weather provisions exist in the Plumbing and Fire Sprinklers Award 2020. Companies with union endorsed enterprise agreements are likely to have more restrictive provisions than the Award provides.
Although there are a range of potential conditions that could be regarded as ‘inclement’ (including hail, extreme cold, high wind, severe dust storms or extremely high temperature), this article will focus on the most common type of inclement weather, rain.
The underlying principle is that workers should not be required to work in the rain except in limited situations.
Assuming it is raining at the beginning of the shift (7.00 am is the sample start time), an employee or their representative can request the employer to assess whether the conditions are inclement or not. The employer has up to 60 minutes (in this case, 8 am) to respond. The provisions only apply to employees who are affected by inclement weather.
If inclement weather is called, the time must be recorded, and the affected employees are required to remain on-site. If it is still inclement after four hours (either in a single block or cumulative during the day), the employer cannot require the employees to remain on site. Employers can determine that the inclement weather will continue and send employees home accordingly.
There are several alternative scenarios to consider in this situation:
(1) In the case of emergency work or where it is necessary to complete a concrete pour, work may continue, provided employees believe the work does not pose an imminent risk to their health and safety. They are entitled to receive 200% of their ordinary rate in these circumstances. The employer should provide suitable protective clothing, such as raincoats, to undertake this work.
(2) Employees can be transferred to other areas of the site, or other sites, not affected by inclement weather.
Transfers can only occur when the rain has stopped, a covered walkway has been provided, the sheds are undercover, and the employees can get to the dry area without going through the rain, or adequate protection is provided.
If inclement weather occurs after the lunch break for an accumulated total of 50% of the normal work time or in the final two hours of the normal workday for more than an accumulated total of one hour, the employer again cannot require the employees to remain on site.
When the rain has ceased, employees should return from their cribs or lunchroom to their normal work location to recommence work. If workers are required to ‘dewater’ parts of the site, this can be carried out by anyone with the required skills to undertake this activity.
A concrete pour commenced at 6.00 am, earlier than the usual start time before the rain commenced. This work can continue until it is finished. Other workers not involved in this activity arriving for their 7.00 am start should be in a nominated dry area waiting for the rain to stop.
Electricians arrive for their 7.00 am start, and they are able to work undercover, not affected by the rain. Assuming dry access is provided to their part of the site, their work should continue as normal.
Work is available for some of the workers affected by the rain on another site. Transportation has been arranged, and the employer is entitled to move these workers to another location.
The rain ceases at 9.00 am. The employer’s site representative should do a ‘walk down’ of the site in conjunction with the site health and safety representatives (HSR) and determine whether it is safe and reasonable to return to work. Once that decision has been made, all employees are required to return to their work locations and recommence work.
The rain continued until 11:30 am. As this is beyond the four-hour threshold, the employer cannot require workers who have yet to start work to remain on the site.
In situations where the rain is anticipated to continue for several days, the employer should consider whether they require employees to arrive on site each day or whether they are given the option to contact the employer’s site representative prior to the start of the shift.
Where employees have been authorised to leave the site, there is a maximum ‘bank’ of 32 hours (equivalent to 4 x 8-hour ordinary days) of paid time in each four-week cycle. A copy of the inclement weather calendar is below.
In situations where the employer has lawfully directed employees to return to work or to move to another site, and they refuse, they would not be entitled to payment. Continuing refusal would be regarded as potential grounds for the termination of their employment.
The Building and Construction General On-Site Award 2020 see Full Text Clause 24. Inclement weather
The inclement weather provisions apply only to the general building and construction and the civil construction sectors under the Award only.
What is Inclement Weather? This means the existence of rain or abnormal climatic conditions (whether hail, extreme cold, high wind, severe dust storm, extremely high temperature or the like or any combination of these conditions) where it is not reasonable or it is unsafe for employees to continue working in those conditions.
When requested by the employees or their representative, the employer or its representative must confer within a reasonable time (which does not exceed 60 minutes) to determine whether or not the conditions apply.
The Award is clear that the time work stops due to inclement weather and the resumption of work after a period of inclement weather has ended will be recorded by the employer.
Whilst inclement weather conditions exist, an affected employee is not required to start or continue to work where it is unreasonable or unsafe to do so. Inclement weather alone may not be unsafe; however, an electrical thunderstorm, hail, or heavy rain would be unsafe.
Emergency work, including concrete pour work, will be paid at the rate of 200% of the ordinary hourly rate calculated to the next hour. Employees will be provided with adequate wet weather gear and should be required as part of your inclement weather policy for employees to keep a change of clothes and wet weather gear available.
The Award provides that where an employee is not able to perform any work at any location because of inclement weather, the employee will receive payment at the ordinary hourly rate for ordinary hours. Payment for time lost due to inclement weather is subject to a maximum of 32 hours of pay in any 4-week period for each employee
If an employee commences employment during a 4-week period, the employee will be credited with the following:
a) 32 hours where the employee commences on any working day within the first week;
b) 24 hours where the employee commences on any working day within the second week;
c) 16 hours where the employee commences on any working day within the third week; and
d) 8 hours where the employee commences on any working day within the 4th week in any 4-week period.
This is a rolling calendar where the ‘first week’ is a reference to the first week in the rolling calendar, not the employee’s first week of employment. If the employee joins the rolling calendar in the third week, they will only have up to 16 hours of inclement weather entitlement for the remainder of the cycle.
An employee working part-time will be entitled to payment on a pro-rata basis according to the number of ordinary hours agreed to be worked in the 4-week period, calculated at (32 x Ordinary Hours in a 4-week period)/152. For example, a part-time employee working 24 hours per week is entitled to (32 x (4×24))/152 = 20.21 inclement weather hours in the 4-week period.
Employees on a portion of a site not affected by inclement weather must continue to work even though employees working on other areas of the site may have stopped work because of inclement weather.
Subject to the availability of alternative work in an employee’s classification, an employer may require employees to transfer:
a) from a location on a site where it is unreasonable and/or unsafe to work because of inclement weather, to another area on the same site, where it is reasonable and safe to work; and/or
b) from a site where it is unreasonable and/or unsafe to work because of inclement weather to another site, where it is reasonable and safe to work, and where the employer, where necessary, provides transport.
Can employees sign off early and not remain on-site?
An employee, at their choice, may choose not to remain at work for the minimum of four hours as required under the inclement weather provision or decline to transfer to another site, yard, depot, or factory by signing off early in writing or via SMS and will only be paid for the time on site. The employer must allow workers to remain on-site in accordance with the inclement weather provisions minimum on-site engagement and not encourage or suggest to employees that they leave work before the minimum engagement period ends.
Where, because of wet weather, the employees are prevented from working:
a) for more than an accumulated total of 4 hours of ordinary time in any one day;
b) after the meal break, for more than an accumulated total of 50% of the normal afternoon work time; or
c) during the final 2 hours of the normal work day for more than an accumulated total of one hour;
the employer will not be entitled to require the employees to remain on site beyond the expiration of any of the above circumstances.
Where, by agreement between the employer and the employees, employees remain on-site beyond the periods specified above, any such additional wet time will be paid for but will not be debited against the employees’ hours. Wet time occurring during overtime will not be taken into account for the purposes of clause 24.14(a).
What about rain at starting time?
Where the employees are in the sheds because they have been rained off, or because it is at starting time, morning tea, or lunchtime, and it is raining, they will not be required to go to work in a dry area or to be transferred to another site unless:
a) the rain stops;
b) a covered walkway has been provided;
c) the sheds are undercover, and the employees can get to the dry area without going through the rain; or
d) adequate protection is provided.
Protection must, where necessary, be provided for the employees’ tools.
Wages and expenses for transfer between worksites during working hours.
Employees travelling between construction sites during working hours must be paid for the time spent travelling at their ordinary rate of pay, whether inside or outside a radial area. Employees travelling between worksites are also entitled to the cost of any public transport fares (whichever is most convenient) or, where they are required to use their own vehicle, an allowance per kilometre. These rates are generally adjusted annually by the Fair Work Commission and can be found on the FWO website here.What does an Inclement Weather Policy Look Like in Construction?
Stop work if it is either not reasonable or not safe for an employee exposed to continue working whilst the same prevails. This may be different for each worker, job site or location on a site. Employees can be transferred to another section of that site or another site for productive work.
Inclement weather does not automatically create unsafe working conditions, but at the same time, employees will not be expected to work in unsafe or unreasonable conditions due to inclement weather.
Employees are encouraged to Think Safe and Be Safe, as inclement weather can create complex conditions with direct and indirect hazards to be identified, including electricity, access and new or increased exclusion zones. Employers and employees must work collectively towards the minimisation of lost time due to inclement weather. Further, employers and employees should consider adopting principles and procedures with regard to inclement weather and non-productive time:
Employees shall accept transfers to an area or site not affected by inclement weather if useful work is available and that work is within the scope of the employee skill, competence and training and, where necessary, transport or payment of a fares allowance for travelling.
Where the initiatives described in (1) above are not possible or non-productive, employees will be available for activities such as OH&S training presentation and participation in learning, planning and reprogramming of the project.
All employees are committed to an early resumption of work following inclement weather.
If it is necessary and consistent with safe working procedures to walk through inclement areas, appropriate protection will be provided.
If it is necessary to walk through inclement areas to get to agreed working areas, appropriate protection will be provided.
Should a portion of the project be affected by inclement weather, all other employees not affected shall continue working regardless of the fact that some employees may not be gainfully employed due to inclement weather.
All other Award conditions shall apply. This includes that employees required to work in the rain for emergency works and concrete pours will be paid double time whilst doing so. During periods of inclement weather that prevents work from being performed on-site, the employer, where practical, will transfer employees to an alternative site not so affected or to the employer’s depot/yard to perform maintenance, service-type duties or training.
Where this is not practical, all full-time employees shall be entitled to payment for ordinary time lost through wet weather and the effects of wet weather for up to 32 hours each calendar month (noncumulative), subject to an employee being ready, willing and able to work.
The number of hours credited to any employee under this clause shall be reduced by the number of hours for which payment is made in respect of lost time through wet weather on-site, at a yard/office and off-site.
Employers must have a sound knowledge of the Inclement Weather entitlements within the Award.
Workforce Advisory has produced a Free Inclement Weather Guide 2022, however if you are looking for more the additional 34 Frequently Asked Questions may assist. The two page Frequently Asked Questions is general advice on the application of the Award Inclement Weather entitlements that commonly relate to payroll staff processing entitlements or supervisors on-site and managers looking reduce costs.
Not knowing who is entitled to what when can cost you thousands in time and productivity. Inclement Weather is a complicated area within the industry. Additional Guides will be produced regarding Heat, Wind, Floods, Smoke and Natural Disasters not covered in the Frequently Asked Questions. Purchasing our Guides, Documents and Publications helps us bring you more industry content and maintain industry knowledge.
For queries about Inclement Weather, award entitlements, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 925 529 or via email to email@example.com
Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.