Fires, Floods and Cyclones… Managing Employment Through Natural Disaster
Queensland may be facing its worst bushfire season on record, at least until the wet season starts and then we will all have to face the risks of cyclone and flooding!
The devastation does not discriminate between businesses and individuals. Many businesses have already experienced the challenges of temporarily closing as a result of a natural disaster or emergency and the interruption to business income that is so necessary for meeting regular expenses, wages in particular. At the same time their employees may have additional expenses arising from damage and loss caused by the natural disaster. Everyone is affected.
What options do employers have?
Stand Down
Section 524, Fair Work Act 2009 (FW Act) allows employers to stand down employees when there is no useful work for them do provided that the stand down is outside the employer’s control, such as a natural disaster.
A stand down is unpaid, however an employer can choose to pay their employees where its financial circumstances allow, and can also allow workers to take accrued paid annual leave or long service leave.
When an employee’s award, enterprise agreement or employment contract contains its own stand down provisions that deal with the same circumstances, the FW Act does not apply and so the employer should check its award, enterprise agreement or employment contract to see if it contains any stand down provisions.
Stand Down Provisions of Particular Awards
The Sugar Industry Award 2010 does not have its own stand down provision and so the FW Act applies unless an applicable enterprise agreement or employment contract has its own provision. Note that there are special rostering and change of shift arrangements for sugar mill employees where wet weather interferes with cane supply or restricts cane transport or crushing operations.
The Building and Construction Industry General On-Site Award 2010 has a detailed provision (section 23) for inclement weather situations that gives workers additional entitlements where it is unreasonable or unsafe to continue working due to some inclement weather conditions.
Communicating Well with Employees about Natural Disaster Impacts
The Fair Work Ombudsman recommends that best practice is for employers to tell employees affected by stand down in writing (where possible):
The start date of the stand down;
Whether they will or will not be paid; and
The effect on other employment entitlements.
Employers should also try to:
Update employees about when they believe the stand down will end;
Keep employees informed about other avenues for assistance including advice agencies such as Centrelink.
Alternatives to Standing Down
The Fair Work Ombudsman (“FWO”) encourages employers to also consider other options such as:
Encourage employees to take accrued paid annual or long service leave;
Voluntary work sharing arrangements with unaffected sites or positions; and
Flexible arrangements such as working from home.
Other Leave Entitlements
Employers should also be aware that other leave entitlements may sometimes apply in natural disaster situations. Personal/carer’s can sometimes apply (depending on the circumstances) and community service leave can also apply especially for those assisting relief efforts.
We recommend that employers understand their rights, obligations and options in natural disaster situations before a natural disaster event occurs, and for further assistance please contact our experienced employment lawyers.