Pay during stand down & severe weather

Stand down

An employer can send employees home if there is no useful work for them to do because of:

• equipment break down
• natural disaster (including floods, bushfires, tropical cyclones)
• industrial action.

This is known as a stand down. This can only happen if the reason for the stand down was out of the employer’s control.

Employees can’t be stood down just because there is not enough work.

Pay during stand down

An employee is not paid during a stand down period.

Best practice tip

An employee is not paid during a stand down period. However, an employer can be flexible and consider other options that will allow an employee to be paid.

The employer can consider letting employees:

• take a period of paid leave, such as annual leave
• work at another location such as from home or another work site.

Shut down

Shut down is when a business temporarily closes during slow periods of the year, such as Christmas and New Year.

Pay during shut down

Employees can be directed to take annual leave during a shut down and are paid annual leave entitlements.

Head to Fair Work Australia’s  Direction to take annual leave during a shut down page for more information.

Inclement or severe weather

Inclement weather is when it is unsafe or unreasonable for an employee to work because of severe weather conditions.

Awards, enterprise agreements and other registered agreements can set out:

• what inclement weather includes
• what employees and employers have to do when there is inclement weather.

Deducting pay & overpayments

Taking money out of an employee’s pay

Taking money out of an employee’s pay is called a deduction.

An employer can only deduct money if:

• the employee agrees in writing and it’s principally for their benefit
• it’s allowed by a law, a court order, or by the Fair Work Commission, or
• it’s allowed under the employee’s award or registered agreement.

Examples include salary sacrifice arrangements or payments into an employee’s health fund.

Deductions have to be shown on the employee’s pay slip and time and wages records.

Deductions that aren’t allowed

An employer can’t deduct money if:

• it benefits the employer directly or indirectly and is unreasonable in the circumstances, or
• the employee is under 18 years of age and their parent or guardian hasn’t agreed in writing.

Example: Deducting money for till shortages

Jenny works as a bar attendant in a tavern and is covered by the Hospitality Industry (General) Award 2010.

At the end of her shift her manager, Robert, counts the money for the day. He notices that the till is $20 short. Robert usually takes money out of the bar attendant’s wages to make up for the shortfall.

Even though the till is $20 short, Robert can’t deduct this money from Jenny’s wages. This is because the award does not allow it, the deduction would not benefit Jenny and it would be unreasonable in the circumstances.

This cost will need to be met by Robert as the employer.

Overpayments

Overpayments can happen when an employer mistakenly believes an employee is entitled to the pay or because of a payroll error.

Employers can’t take money out of an employee’s pay to fix up a mistake or overpayment. Instead, the employer and employee should discuss and agree on a repayment arrangement. If the employee agrees to repay the money, a written agreement has to be made and has to set out:

• the reason for the overpayment
• the amount of money overpaid
• the way repayments will be made (eg. cash, cheque or electronic transfer) and how often (this has to be reasonable).

If the repayment can’t be agreed an employer should get legal advice.

A deduction can be made to get back an overpayment if it’s allowed under a registered agreement, award, legislation or court order.

Example: How to pay back an overpayment

Tony was overpaid $2000 over 3 years because of a payroll error. His award does not allow a deduction to be made when an employee is overpaid.

Tony and his employer, Alice, meet to discuss the overpayment. Tony agrees to repay the money and they come up with a solution.

Alice says Tony can choose how the money is paid back and the amount and frequency of the payments. Tony tells Alice that he’d prefer if $20 was deducted from his pay each week until the $2000 is repaid. This arrangement is put in writing and both sign.

This repayment is reasonable because Tony had a choice about how the money was paid back, and the amount and frequency of each payment.

Best practice tips

• Check your award or agreement to find out when deductions can be made.
• Employers and employees should talk to each other if an overpayment has been made, then come to an agreement about repayment and put this in writing.