Stand Downs and Poor Weather on Construction Sites

What it is

A stand down is the employer's power to send workers home without pay when work stops for a reason outside their control. Section 524 of the Fair Work Act 2009 (Cth) is the general power, and builders reach for it the first time a site floods.

That is usually the wrong instrument, and it is expensive. Inclement weather is generally not a lawful section 524 stand down on a site covered by MA000020. The award already deals with weather, and it deals with it by requiring the builder to pay.

What section 524 actually requires

Section 524(1) lets an employer stand down an employee "during a period in which the employee cannot usefully be employed because of" one of three things: industrial action not organised by the employer, a breakdown of machinery or equipment the employer cannot reasonably be held responsible for, or "a stoppage of work for any cause for which the employer cannot reasonably be held responsible". Section 524(3) then removes the obligation to pay.

Two limbs must hold at once. There must be a stoppage the employer cannot reasonably be held responsible for, and the employee must be unable to be usefully employed. Rain fails the second limb far more often than builders expect. If there is dry work elsewhere on the site, in a shed or at another site, the worker can be usefully employed and the stand down is unlawful.

The Fair Work Ombudsman is blunt: employers cannot stand an employee down just because the business is quiet or there is not enough work due to bad weather.

What MA000020 clause 24 actually does

Clause 24 applies to general building and construction, which takes in residential work, and to civil construction. It defines inclement weather as rain or abnormal climatic conditions "where it is not reasonable or it is unsafe for employees to continue working in those conditions".

• Clause 24.3: on request, the employer must confer with employees within a reasonable time, capped at 60 minutes, to decide whether the conditions qualify.
• Clause 24.13: subject to the availability of alternative work in the employee's classification, the employer may require a transfer to another area of the same site, or to another site, providing transport where necessary.
• Clause 24.7: where an employee cannot perform any work at any location because of inclement weather, they are paid at the ordinary hourly rate for ordinary hours. Payment is capped at 32 hours pay in any 4 week period for each employee.
• Clause 24.4: the employer must record the time work stops and the time it resumes. Clause 24.11: weather during overtime attracts no payment.

Why section 524 fails on a wet day

Section 524(2) only switches off the general power where an enterprise agreement or a contract of employment provides for stand down. An award is not on that list, so MA000020 does not formally displace section 524. That is not an escape hatch. The award makes the stand down fail on its own terms instead.

Clause 24.13 shows the employer can be expected to have alternative work and to move people to it. Clause 24.7 shows a payment obligation the industry has already accepted for this exact situation. A tribunal asking whether the employer "cannot reasonably be held responsible" for the stoppage, and whether the worker "cannot usefully be employed", is reading an award clause that answers both against the builder.

Natural disasters sit differently. A flood or bushfire that stops the whole site can be a section 524 stoppage. Rain on a Tuesday is not.

Daily hire is not a stand down either

MA000020 clause 9 makes tradespeople and labourers daily hire: "One day's notice of termination of employment will be given on either side or one day's pay will be paid or forfeited." Some builders treat this as a wet weather switch, terminating on a rained-out Monday and re-engaging on Wednesday.

It is not a stand down. It is a termination and a fresh engagement, with everything that follows: final pay, accrued annual leave paid out with the 17.5 per cent loading under clause 31.2(b), continuity of service questions and unfair dismissal exposure. Doing it repeatedly to sidestep clause 24.7 also invites a general protections claim.

What it costs to get wrong

Every day of an unlawful stand down is an underpayment of ordinary hours for every worker sent home, recoverable for six years plus interest.

The exposure grew on 27 February 2024. A serious contravention now arises from a knowing or reckless contravention, replacing the old knowing and systematic test. Recklessness is a much lower bar, and a builder who was told the award required payment and kept standing people down anyway is squarely inside it.

The safe sequence on a wet day: confer within 60 minutes, look for alternative work in classification here or at another site, transfer if it exists, record the stop and resume times, and pay clause 24.7 if there is genuinely no work anywhere. Reserve section 524 for the flood, not the shower.