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18 December 2019
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.
This article provides some guidance on the kinds of things that employers need to think about following a natural disaster.
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
Employees have leave entitlements under the National Employment Standards (NES) and their industrial instrument (eg, a modern award or enterprise agreement). They may also have entitlements under their employment contract or employer policy.
Types of leave which may be relevant in a time of natural disaster include:
Annual or long service leave
Employers should consider whether they are willing to provide short-term annual or long service leave without requiring the usual notice.
Employees may also ask their employers to cash out annual or long service leave to assist them financially. Cashing out of leave entitlements can be done only in accordance with the relevant industrial instrument or law – for example:
Personal or carer's leave
An employee may take paid personal or carer's leave if the leave:
A natural disaster is the type of unexpected emergency for which paid personal or carer's leave may be provided. Where childcare 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 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:
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 of 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 (eg, utility costs) are relevant and should be carefully considered by employers.
If employers have no working from home policy, they should consider creating one to deal with these and any other relevant issues.
Standing down employees without pay
Standing down 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, Parts 3 to 5 of the Fair Work Act 2009 (Cth) 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 it cannot be accessed.
Stand down means that the employee does not receive payment during the stand-down period.
Employers must be aware of their work health and safety obligations and the risks for their employees and other workers in conditions relating to natural disasters, which are unlikely to have been considered as part of the usual work health and safety management system. As a minimum, employers should consider the following questions:
Employers must consult with workers about hazards and risks in the workplace and identify and control risks by eliminating or reducing hazards and risks as far as is practicable. They must also 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.
Further, the psychological and emotional impact on workers should not be underestimated. Where appropriate, employers should make counselling available to workers.
For further information on this topic please contact Aaron Goonrey, Kaitlyn Gulle or Cameron Hannebery at Lander & Rogers by telephone (+61 2 8020 7700) or email (firstname.lastname@example.org, email@example.com or firstname.lastname@example.org). The Lander & Rogers website can be accessed at www.landers.com.au.
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
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