With the extensive devastation caused by bushfires across Australia, including New South Wales, Victoria, Queensland & South Australia, we have been receiving a number of queries from clients regarding their rights and obligations in these circumstances.
Where a business cannot operate due to circumstances out of its control (such as a bushfire or other natural disaster) the Fair Work Act 2009 (FW Act) allows employers to “stand down” permanent employees, ie require them to not attend work. There is no obligation to pay employees during a period of stand down under the FW Act (although an employer may choose to pay employees if they wish). Stand downs can only be used where there is no useful work that an employee can be given to do.
Modern awards, enterprise agreements and employment contract can also contain provisions dealing with stand downs so it is important that employers check these instruments too.
For casual employees, given the casual nature of their employment, they do not need to be stood down: they can just be told that they are not required to work on a particular day if the employer cannot operate due to the circumstances of a bushfire or other natural disaster.
Where a permanent employee is not covered by a modern award or enterprise agreement, an employer can require them to take annual leave where the requirement is reasonable.
Whether it is reasonable to require an employee to take annual leave in the circumstances of a bushfire or other natural disaster will depend on the circumstances of each case (including how leave the employee has accrued, etc).
If an employee is covered by a modern award or enterprise agreement, an employee can only be required to take annual leave in circumstances provided for in the award or agreement.
In any event, employers and employees are entitled to agree between themselves that annual leave will be taken in the circumstances of a bushfire or other natural disaster. Some employees may prefer to take paid annual leave rather than be on a period of unpaid stand down.
The FW Act allows for permanent employees to take paid personal/carer’s leave to care for a member of their immediate family or household who requires care due to an illness or injury or because of an unexpected emergency. If therefore, an employee needs to assist a member of their family or household because of a bushfire or other natural disaster, they will be able to use paid personal/carer’s leave for this purpose.
This is also likely to cover situations where an employee needs to take time off work to take care of a child because that child’s school or day-care is closed due to bushfires or other natural disasters.
Permanent employees who have exhausted their paid personal/carer’s leave entitlement (and casual employees) are also entitled to take unpaid carer’s leave in these circumstances.
An employer is allowed to require employees to provide evidence of the need to take personal/carer’s leave in these circumstances.
Community service leave
Employees are entitled to take unpaid community service leave where they are members of a recognised emergency management body (such as volunteer firefighters) and need to take leave for certain emergency management activities. Awards and agreements may also contain additional provisions in relation to community service leave. Although there is no obligation to pay employees for taking such leave, employers may choose to do so. The Government is also introducing new laws to allow volunteer firefighters to receive government-funded compensation for loss of earnings in some States. See here in respect of NSW.
Employer’s general duty of care
Employers have a duty of care to all employees, including an obligation to provide them with a safe place of work. If an employee is likely to be put at risk by attending work when there is a bushfire or other natural disaster, employers should think very carefully before making any such demand of the employee.
Working from home or from other sites
Employers should also consider whether it is possible to allow employees to work from home or from other work-sites when it is unsafe for them to attend work due to a bushfire or other natural disaster.
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This article was originally published on 12 November 2019 and has been updated to reflect the needs of Australians during this national disaster.