What are your work entitlements during natural disasters and emergencies?

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After a season of devasting bushfires, Australia has now been hit by a tropical cyclone and severe storms causing serious material damages, road closures and flash flooding. These extreme weather events cause devastation and losses affecting individuals and businesses. Many employers are confronted with the impact these natural disasters may have on their workplace and employees. Employers and employees should be aware of their rights and obligations in the midst of a natural disaster.

Modern Awards, enterprise agreements and employment contracts may contain specific provisions in relation to an emergency or natural disaster. So, employers and employees should first check if any particular provision exists. If there is no such entitlement, the Fair Work Act 2009 (Cth) (FW Act) offers a range of available options.

Managing Employees During Natural Disasters

Natural disasters can force employers to temporarily close their business. In such circumstances, section 524 of the FW Act provides that an employer may stand down employees without pay during a period in which:

  • employees cannot usefully be employed because of a stoppage of work; and
  • the employer cannot reasonably be held responsible for the stoppage.

Bushfires or floodings may cause a stoppage of work for which an employer cannot reasonably be held responsible for.  In that case, there is no obligation for employers to pay employees during the period of stand down, but they may choose to do so as a gesture of goodwill. In any event, it is recommended to notify in writing as soon as practicable those employees of the following:

  • the start date of the stand down;
  • whether the employee will be paid or not;
  • the effect on other employment entitlements; and
  • the date when the stand down is expected to end.

When employees are already on leave or authorised to be absent from work, stand down provisions do not apply to them.

Other alternatives should be considered before an employer stands down their employees without pay. The Fair Work Ombudsman advises that alternatives may include:

  • proposing employees to take a period of accrued paid leave, such as annual leave –  this is only possible with the agreement of the employer and the employee;
  • if other worksites exist and have not been affected, considering voluntary work or hours sharing arrangements among sites and employees; or
  • organising flexible arrangements when possible, such as working from home.

Employee’s working arrangements can only be altered in accordance with the FW Act and any relevant award or agreement. Employers should keep in mind the safety and wellbeing of their employees when doing so.

Employees’ Entitlements During Natural Disasters

Natural disasters will often result in employees requiring time off to care for themselves or their family members. There is no specific form of leave available to an employee affected by a natural disaster. Employees who have accrued annual leave may use their annual leave entitlements in these circumstances, with the employer’s agreement. Otherwise, employees may be entitled to personal/carer’s leave or compassionate leave.

Personal/Carer’s Leave

Full-time and part-time employees may have an entitlement to take accrued paid personal/carer’s leave if they are unfit for work because of a personal illness or injury or to provide care or support to a member of their immediate family or household because of a personal illness, injury or in the event of an unexpected emergency. For example, if the school of an employee’s child closes due to a natural disaster, the employee may be eligible for personal/carer’s leave to take care of their child.

Employees who have used all of their paid personal/carer’s leave and casual employees are entitled to two days of unpaid carer’s leave for each particular occasion when a member of their immediate family or household requires care or support due to illness, injury or in the event of an unexpected emergency.

Compassionate Leave

Employees are entitled to two days of compassionate leave for a particular permissible occasion to spend time with a member of their immediate family who has sustained a life-threatening illness or injury or after the death of a member of the employee’s immediate family. Employees, other than casual employees, are entitled to be paid during compassionate leave.

When taking personal/carer’s leave or compassionate leave, employees must give their employers notice of the taking of leave and provide evidence to support the leave period if required.

Community Service Leave for Volunteering

Pursuant to section 109 of the FW Act, employees who are members of a recognised emergency management body may be entitled to take unpaid community service leave for the purpose of engaging in an eligible community service activity, such as dealing with an emergency or a natural disaster, on a voluntary basis.

The FW Act does not specify the amount of time that can be taken. However, the absence of work must be reasonable having regard to the following circumstances:

  • time when the employee engages in the activity;
  • reasonable travelling time associated with the activity; and
  • reasonable rest time immediately following the activity.

During the recent bushfire crisis, the current legislation has been criticised as providing insufficient support to those assisting emergency services as volunteers. The minimum standards in the FW Act can be improved by state law, enterprise agreements or other arrangements implemented by employers in the private sector. It may be unreasonable to expect small businesses to pay their employees when volunteering.  However, larger companies have started to implement more generous volunteer leave arrangements allowing employees to take paid leave when they are away volunteering in emergency services. In response to the crisis, the government has announced a federal scheme to compensate volunteer firefighters. They have also granted an additional four weeks’ paid leave for volunteers firefighters employed in the public sector. However, those announcements have not been enough to stop criticisms in the management of the recent bushfire crisis.

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