15 January 2020
Published by Natasha Jones
Employers impacted by the bushfires may be required to temporarily cease operations and stand down employees or manage employee absences in connection with a bushfire. In this article, we set out the rights and obligations of employers to employees during a stand down period and the key leave entitlements which employees may take in response to the threat or impact of the bushfires.
Statutory entitlement to standing down employees during a stoppage of work
Many employers impacted by the bushfires may have, or may be required, to cease trading for safety concerns. The Fair Work Act 2009 (Cth) (FW Act) allows an employer to “stand down an employee during a period in which the employee cannot usefully be employed because of … a stoppage of work for any cause for which the employer cannot reasonably be held responsible” (section 524(1)(c) of the FW Act). A natural disaster or emergency situation, such as a bushfire, which forces a business to stop work would be the kind of event which may allow a business to stand down its employees under section 524 of the FW Act.
The ability for an employer to stand down an employee in these circumstances is subject to any provisions concerning work stoppages and stand downs in an enterprise agreement or contract of employment that applies to the employer and employee. If an enterprise agreement or contract of employment contains provisions concerning stand downs during a work stoppage, those provisions will apply.
A“stand down” arrangement due to a stoppage of work under the FW Act is different from a “close-down” period where an employee may be directed to take paid annual leave.
Employers may not be required to pay employees for the stand down period
Ordinarily, when an employer does not require work to be performed by a permanent employee, subject to an employee’s agreement, an employer will have a common law duty to continue to pay the employee for the period.
However, in cases where an employer experiences a stoppage of work and stands down employees in accordance with section 524 of the FW Act, an employer is not required to make payments to those employees for the period of the stand down (section 524(3) of the FW Act).
If an employer has an enterprise agreement or employment contract containing provisions concerning stand downs during a work stoppage, those provisions will apply.
Service related entitlements continue to accrue during a stand down period
An employee who has been stood down will continue to accrue service related entitlements during the stand down period.
Employees may take paid or unpaid leave entitlements during the stand down period
Given that most employers will not be required to make payments to employees during a stand down period, employees (other than casuals) may seek, and are entitled to take, accrued paid annual leave during this period.
Should an employee not have sufficient annual leave accrued to cover the period of the stand down, employers may consider offering or agreeing to provide those employees with annual leave in advance. However, there is no obligation for employers to offer or provide annual leave in advance during a stand down period.
If an employee does take annual leave (or other paid leave) during the stand down period, the employee will not be taken to be stood down and will continue to accrue service related entitlements for that period.
Employees may also take other approved paid or unpaid leave entitlements during the stoppage of work, where applicable.
Impacted employees may seek to take leave entitlements
Separate to a stand down period, employees who are dealing with the impact of the fires, such as employees who wish to monitor or defend fires near their property or who wish to evacuate due to the fires may be unable to attend work.
Employees impacted by the bushfires may request to take paid and/or unpaid leave entitlements either during a stand down period or in response to the threat or impact of the bushfires. There is no general paid or unpaid leave entitlement for employees impacted by an emergency situation or natural disaster.
However, we set out below the types of leave which employees may seek to take and the circumstance when an employee will be entitled to those leave entitlements.
Employees (other than casuals) are entitled to take any accrued paid annual leave by agreement with their employer. Employers must not unreasonably refuse an employee’s request to take paid annual leave. It may be unreasonable for an employer to refuse an employee’s request to take annual leave if the employee is dealing with the threat or impact of a bushfire. What is “reasonable” will depend on the circumstances of each employee, and the employer’s business needs.
For employees who do not have sufficient annual leave accrued, employers may consider offering or agreeing to provide employees with annual leave in advance or otherwise may authorise an unpaid absence from work.
Personal or carer’s leave
Employees (other than casuals) who are:
are entitled to take paid personal or carer’s leave, including during a period of stand down.
Members of an employee’s immediate family include: a spouse or de facto partner, or a child, parent, grandparent, grandchild or sibling of the employee or spouse or de facto partner of the employee.
An employee is required to provide notice of taking personal or carer’s leave, as soon as reasonably practicable (which may be after the absence has started) and must advise their employer of the period, or expected period, of the absence.
An employer may request that an employee provide evidence that the leave is taken for a permissible reason.
All employees (including casuals) may take two days compassionate leave for each occasion where a member of the employee’s immediate family or a member of the employee’s household:
Compassionate leave is paid for full-time employees and part-time employees and unpaid for casuals.
An employee is required to provide notice of taking compassionate leave, as soon as reasonably practicable (which may be after the absence has started) and must advise their employer of the period, or expected period, of the absence. An employer may request that an employee provide evidence that the leave is taken for a permissible occasion.
Community service leave
Employees (including casuals) are entitled to take community service leave for an eligible “voluntary emergency management activity” among other reasons.
An employee is eligible to take community service leave for voluntary emergency management only if:
By way of example, an eligible voluntary emergency management activity may include (without limitation) volunteering with the State Emergency Service, the Rural Fire Service or Country Fire Authority, or the RSPCA or WIRES in respect of their response to the bushfires.
An employee is required to provide notice of taking community service leave, as soon as reasonably practicable (which may be after the absence has started) and must advise their employer of the period, or expected period, of the absence.
Community service leave is unpaid. So long as the employee satisfies the eligibility requirements to take community service leave, there is no limit to the period or frequency that an employee may be on community service leave.
Absences for Defence Reservists
An employee who is a Defence Reserve Member may be required to report for service in connection with the bushfires.
Because Defence Reserve Members receive military pay for their service, they technically are not entitled to community service leave under the FW Act. However, Defence Reserve Members have separate entitlements arising under the Defence Reserve Service (Protection) Act 2001 (Cth) (Reserves Act).
The Reserves Act provides, among other things, that:
An employee who is absent on defence service will have their employment “suspended” during their absence. During this time, the employee will not continue to accrue service related entitlements, such as annual leave and persona or carer’s leave (unless they are simultaneously taking a period of paid leave). However, their absence will not break their continuity of service for the purpose of service related entitlements (such as entitlements to redundancy pay and notice of termination of employment).
Employer response to employee absences
We recommend that employers seek legal advice before taking any steps to manage the absence of an employee who has been impacted by the fires and has been absent from work, whether the absence is authorised or unauthorised.
Author: Natasha Jones
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
Published by Natasha Jones