Friday, 10 January 2020

State of Emergency: Employee rights to leave in the face of bushfire crisis

In the face of the historic bushfires affecting large parts of Australia, an enormous number of workers have had their homes, communities, or lives impacted by the ongoing national emergency. For many employers, this means staff shortages as employees take time to protect loved ones and property. Some businesses may also be directly impacted and required to cease operations. It is important for employers to understand both their employees’ rights, and their business’ obligations in a disaster situation.

What leave can an employee take during a natural disaster or emergency?

Natural disasters or emergencies will often result in employees needing to take time off work to care for themselves or their family.

Employees may be able to access leave entitlements under the National Employment Standards (NES), which are described below. If the employee is covered by a modern award or enterprise agreement, they may also be entitled to additional leave in certain circumstances.

  1. Community Services leave

An employee who is a member of a recognised emergency management body (such as the State Emergency Service) is entitled to unpaid community services leave for as long as that employee is requested and engaged in a voluntary emergency management activity. This includes reasonable travel time during their voluntary service and rest time after the activity.

There is no limit on the amount of community service leave an employee can take.

Community service leave entitlements may also be contained in modern awards or enterprise agreements in addition to the entitlements under the NES.

  1. Personal and carer’s leave

Permanent employees may be eligible to use their paid personal leave in order to manage the effects of the disaster on their families.

Employees can access accrued personal/carer’s leave where they are absent because of a personal illness or injury affecting them or a member of their immediate family or household or, relevantly, because of an unexpected emergency affecting a member of an employee’s immediate family or household.

Examples which would constitute an “unexpected emergency” include where an employee, as a result of the fires, is required to assist their family member or household member to evacuate their home, or where an employee is required to care for a family member who has been evacuated as a result of the fires. This may also include care for a child who is unable to attend day-care as a result of the emergency.

Permanent employees who have insufficient paid personal leave accrued and casual employees are entitled to two days unpaid carer’s leave per occasion to provide care and support to a member of their immediate family or household. However, we would strongly advise employers to extend this period in the current emergency circumstances.

  1. Compassionate leave

Employees have a right to two days of compassionate leave to spend time with a member of their immediate family or household sustains a life-threatening injury or should a member of their immediate family or household pass away. Employers are encouraged to adopt a compassionate approach and be open and understanding if tragedy strikes an employee.

Permanent employees are entitled to be paid during a period of compassionate leave, whereas casual employees are entitled to unpaid compassionate leave.

Compassionate leave entitlements may also be contained in modern awards or enterprise agreements in addition to the entitlements under the NES.

  1. Annual leave and long service leave

Employees may seek to access their annual leave or long service leave during an emergency situation, in which case the employer cannot unreasonably refuse to agree to this request.

Notably, where an employee chooses to take a period of annual leave, which subsequently develops into a period that would constitute personal or carer’s leave, the employee can request to have their annual leave reallocated to personal/carer’s leave.

What if an employer has to close down its operations?

Under the Fair Work Act, if businesses are forced to close due to staff shortages, or proximity to disaster or dangerous areas, employers have the right to stand down the workforce until such a time as work can be safely resumed. Certain modern awards or enterprise agreements may also contain stand down provisions in emergency situations.

Employers are generally not required to pay employees during a stand down, however to mitigate financial loss and hardship to employees during this time, employers should consider allowing employees to take paid leave (such as annual leave or long service leave) during the stand down period until the workplace reopens.

If an employer is going to stand down employees, it is best practice to inform the employees in writing, and provide employees with as much advance notice as possible.

Understanding employees’ rights is the first step to successfully managing the fallout of an emergency, however employers should remain flexible and compassionate in the face of widespread crisis.

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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