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.
Providing for employees' short-term needs
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) 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;
- personal or carer's leave;
- community service leave; or
- special paid leave.
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:
- in Queensland, cashing out long service leave may be permitted in limited and compassionate circumstances; and
- the NES relating to annual leave have a strict regime relating to cashing out of annual leave.
Personal or carer's leave An employee may take paid personal or carer's leave if the leave:
- is taken to provide care or support to a member of their immediate family or 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 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:
- 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 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:
- 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 (eg, damage to building structures and the electrical wiring of buildings or computers, muddy or slippery surfaces or unsafe drinking water)?
- 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?
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.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.
