Learn about employer obligations and employer rights under employment law…
The recent floods in QLD, northern NSW and Victoria have shocked and shaken the nation. Many people have lost their lives, thousands have lost their homes and possessions and whole towns have been destroyed.
Local employers have also been heavily impacted by the floods. From shut downs to coordinating employee absences, employers have played an important role in managing the disaster. And like others impacted by the disaster, the issues for employers do not end when the floodwaters dissipate; workplaces continue to be affected as traumatised employees deal with the aftermath of the destruction.
The disaster has proven a wakeup call for employers across Australia to better understand their employment law obligations and employment law rights in the event of a major disruption to operations. Following is an outline of the basic obligations of all employers during natural disasters and other emergencies.
Community Service Leave
The National Employment Standards (NES) entitles permanent employees to be absent from work (including travelling and rest time) on unpaid ‘community service leave’ to attend ‘voluntary emergency service activity’ if the following conditions are met:
- The activity involves an emergency or natural disaster;
- The employee is a volunteer (although he or she may still receive gratuity);
- The employee is a member of a recognised emergency management body;
- The emergency service organisation requested the employee take part; or
- The regulations otherwise prescribe the organisation to be eligible.
The NES does not set a time limit for community service leave. However, under employment law an employer may set a maximum leave period or request that the employee be discharged from emergency service duties if their business is being impacted.
It is important to note that if employees are covered by another Act, Award or Enterprise Agreement or company policy or employment contract which includes more generous community service provisions than the NES, the more generous provisions apply.
Notice and evidence
Employees are required, under employment law, to give their employer verbal or written notice as soon as practicable of his or her intention to take community service leave and the estimated length of that leave.
The employer may request the employee give evidence that he or she will be performing emergency service activity. If the employee fails to comply with the notice requirements, the employer may refuse to grant community service leave.
Employer shut down
The Fair Work Act allows employers to stand down employees without pay where they cannot usefully be employed during a period because of any stoppage of work for which the employer cannot reasonably be held responsible, such as a natural disaster. However, it is important to check any relevant industrial instruments which will prevail over these provisions in the Fair Work Act.
A decision to stand down employees should not be taken lightly. Employers must consider whether the employee could perform alternative work or work from another location. To be certain, employers should seek employment law advice from employment lawyers Sydney before making any decision to stand down employees.
Employees may take paid personal leave to care for a member of their household who requires care due to an unexpected emergency, which includes a natural disaster. Casual employees and permanent employees who have exhausted their paid personal leave may take up to two days unpaid carer’s leave in the event of an unexpected emergency. Under employment law employees are required to give notice of an intention to take the leave as well as evidence if required by the employer.
Supporting Employees In the aftermath
Employers may at their discretion decide to provide employees dealing with the full impact of the floods some flexibility when returning to work. This may be in the form of working from home, flexible start and finish times, discretionary leave or working in other locations. However, if allowing employees to work from home, employers should consider OHS issues, insurance arrangements, confidentiality issues and reimbursement of any expenses.
Finally, employers often go above and beyond any legal responsibilities when supporting employees through times of national difficulty. Some larger employers offer financial support, confidential counselling services or other assistance. In most organisations, managers and colleagues offer informal support in conversations with employees suffering stress from their ordeal and generally keeping tabs on whether their co-workers are coping. Work is an important part of an individual’s community and support system. Offering informal ways to support employees is important in achieving a positive culture and retaining loyal employees during challenging times.
Advice to businesses
- seek employment law advice from employment lawyers Sydney in an emergency situation if employees are unable to attend work or if the company is considering a shut down
- understand community service leave obligations – in NES or other legislation or industrial instruments applicable to the employment
- consider flexible/alternative work options for affected employees
- consult affected employees individually to ensure the organisation can assist each employee in a way most appropriate to them
- design a business action plan, which is in line with employment law, for an unexpected emergency situation
Please call the leading employment lawyers Sydney, the Matthews Folbigg Workplace Solutions team on 9635-7966 to speak with one of our employment lawyers.