Aaron Goonrey, Partner, Kaitlyn Gulle, Partner and Cameron Hannebery, Special Counsel at Lander & Rogers provide their insights on obligations employers owe to employees in light of recent bushfires across Australia.
Summary
The current fires in New South Wales and Queensland are a timely reminder for employers to review their business arrangements for responding to such crises, particularly in workforce management, and ensuring that they have a plan in place to deal with the aftermath.
Providing for the short term needs of employees
For employers and employees affected by a natural disaster, an initial focus will be on providing employees short term assistance. This may include:
- Access to leave entitlements;
- Alternative working arrangements; and
- Standing down employees.
Access to leave entitlements
Employees have leave entitlements under the National Employment Standards (NES), their industrial instrument (such as a modern award or enterprise agreement), and they may also have entitlements under their employment contract and/or employer policy.
Types of leave which may be relevant in a time of natural disaster include:
- Annual leave or long service leave;
- Personal/carer’s leave;
- Community service leave; or
- Special paid leave.
Annual leave or long service leave
Employers should consider whether they are willing to provide short term annual leave and long service leave without requiring the usual notice.
Employees may also ask their employers to cash out annual leave or long service leave to assist them financially. Cashing out of leave entitlements can only be done in accordance with the relevant industrial instrument or law. For example:
- in Queensland, cashing out long service leave may be permitted in limited and compassionate circumstances; and
- the NES relating to annual leave has a strict regime relating to cashing out of annual leave.
Personal/carer’s leave
An employee may take paid personal/carer’s leave if the leave:
- is taken to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household; and
- if this person requires care or support because of an unexpected emergency.
A natural disaster is the type of unexpected emergency for which paid personal/carer’s leave may be provided. Where child care facilities or schools are closed, employees may be required to care for their children. This too may fall within the definition of an unexpected emergency for the purposes of carer’s leave.
As with annual leave and long service leave, employers may also be asked to cash out part of an employee’s personal leave accrual. This must be done in accordance with the NES.
Community service leave
Under the NES, an employee who is working in a voluntary emergency management activity, such as the relevant State Emergency Service, is entitled to take unpaid leave. This leave may include:
- time off when the employee is engaged in the activity;
- reasonable travel time associated with the activity; and
- reasonable rest time immediately following the activity.
Special paid leave
Special paid leave is generally a discretionary benefit provided by an employer to an employee. It is often in addition to an employee’s existing entitlements under the NES, industrial instrument and employment contract.
Alternative working arrangements
Employees may seek approval to work from home for the short term. Each request should be considered on its merit. However, where employers are considering such a request, they should remember that they continue to have all their occupational health and safety obligations in respect of the home workplace.
Other issues such as IT system integrity, confidentiality, insurance and reimbursement of associated costs (such as utility costs) are relevant and should be carefully considered by the employer.
If you do not have a working from home policy then you should consider creating one to deal with these and any other relevant issues.
Standing down employees without pay
Standing down of employees without pay may be permitted under the relevant industrial instrument or employment contract.
Where the industrial instrument or employment contract does not provide for standing down an employee, Part 3-5 of the Fair Work Act 2009 (Cth) (Act) may apply. Under the Act, an employer may stand down an employee who cannot be usefully employed because of a stoppage of work for any cause for which the employer cannot reasonably be held responsible. This may include closing the workplace due to a power failure or because there is no access to the workplace.
Stand down means that the employee does not receive payment during the stand down period.
Managing health and safety
Finally, employers need to be aware of their occupational heath and safety obligations and the risks for their employees and other workers in conditions related to natural disaster, which are unlikely to have been considered as part of the business usual occupational health and safety management system. As a minimum, employers should consider:
- Is it safe to travel to the workplace?
- Can the workplace be safely accessed?
- Are there additional risks in the workplace posed by the consequences of floods or fires (such as damage to building structures and the electrical wiring of buildings or computers, muddy or slippery surfaces, safety of drinking water, etc)?
- How can workers be updated about weather conditions?
- Will workers be undertaking new, different or undefined tasks, and if so are they trained to do so?
- Are workers trained to participate in any clean up and how can this be adequately supervised?
- Can the need for travel in areas at risk of flooding, fire or other natural disaster be reduced or eliminated?
It is important for employers to consult with workers about hazards and risks in the workplace and to identify and control risks by eliminating or reducing hazards and risks as far as is practicable. It is also important to communicate the control measures clearly to all workplace participants, including contractors.
Employers should continue to monitor hazards and risks in changing conditions and regularly communicate to workers about any new risks or hazards which emerge and the effectiveness of any control measures which are in place.
Also, the psychological and emotional impact on workers should not be underestimated. Where appropriate, employers may like to consider making counselling available to workers now, and in the coming weeks.
Aaron Goonrey is a Partner in Lander & Rogers’ Workplace Relations & Safety team. He is an experienced industrial relations and employment lawyer and provides advice and litigation representation across these specialty areas. Aaron is a regular presenter on employment law and HR topics, as well as being the author of many workplace relations articles for external publications and Lander & Rogers. In addition, Aaron frequently designs and delivers training programs for clients about the constantly changing employment law landscape, including for HR personnel and people managers. Connect with Aaron via email
Kaitlyn Gulle is an LIV Accredited Specialist in Workplace Relations who has experience in a wide range of areas within the field of workplace relations and employment law. She assists her clients, both private and public sector, throughout the various stages of the employment relationship, including providing initial advice through to negotiations and final hearings. Connect with Kaitlyn via email
Cameron Hannebery is a highly experienced OHS and criminal law practitioner. Cameron was Telstra’s in-house health and safety legal counsel for 9 years prior to joining Lander & Rogers. Connect with Cameron via email
