06 Mar Flood conditions – employment ramifications
Once again the recent severe weather related events across many parts of the country have resulted in numerous queries to the Association on employer obligations when employees are unable to carry out their normal duties. In some cases employees have clearly been unable to get to work due to hazard conditions, in others their homes have been threatened or lost due to flooding. In other instances their place of work has been rendered unable to operate due to weather related events.
In the past, most industrial awards including the previous Federal Timber Industry Award provided a stand down clause which provided the relevant information about when employees could be stood down without pay (i.e. machinery breakdown, strike or any other circumstance where the employer could show reasonable cause that the circumstance were beyond the control of the business). The later instance could then be subject to debate/challenge and ultimate adjudication if the parties were in disagreement over the nature of the stand down.
In the post 1 January 2010 environment with the new “modern awards”, the Fair Work Act provides a less specific, more general provision in that employers may also have this right, in certain circumstances, when there is a stoppage of work for any cause for which the employer cannot reasonably be held responsible, to stand down an employee without pay. This would generally apply to situations involving natural disasters similar to the widespread flooding in Qld, NSW and Victoria.
Employers should firstly check to see whether their modern award or enterprise agreement (if applicable) has specific stand down provisions as these provisions will take precedence and will apply in lieu of any provisions under the Fair Work Act 2009.
In these circumstances where a natural disaster prevents normal workplace functioning, an employer and an employee often agree to the taking of annual leave to cover the period of down time. It is important that this arrangement be confirmed by the parties in writing and on a proper annual leave application form (can be obtained from TTIA). This will to ensure that there is no future dispute about whether the leave was indeed taken by the consent of the parties.
It should also be noted that employees who volunteer to help out in times of disaster have certain rights under the National Employment Standards. They are entitled to be released by the employer and time off (on an unpaid basis) when they are engaged in the activity, as well as travelling time and a reasonable rest time immediately following the volunteer work.
It should be noted that to be eligible to take community service leave the employee must be of a recognised emergency management body like a Bushfire Authority or State Emergency Service. The employee can also be requested by their employer to provide proof/evidence that they have been engaged in an eligible community service activity.
If you need further clarification of how natural disasters interact with an employment contract and the current workplace laws, do not hesitate to contact the TTIA Enquiry Line on (02) 9264 0011 for further assistance.