Bushfires — options for employers and employees

Analysis

Bushfires — options for employers and employees

With the bushfire threat growing in eastern Australia, you may need to adjust your working arrangements to cope with emergency circumstances.

WantToReadMore

Get unlimited access to all of our content.

With the bushfire threat growing in eastern Australia, you may need to adjust your working arrangements to cope with emergency circumstances.
 
More and more heavily populated areas of New South Wales are suffering catastrophic bushfires, and many readers may find themselves having to deal with interruptions caused by fire. Situations could include:
    • employees who can’t make it to work because their home is threatened by a bushfire
    • access between employees’ residence and the workplace is blocked by bushfire
    • you are directed by emergency services personnel to evacuate the premises due to bushfire threat
    • your business premises has been damaged or destroyed by bushfire
    • you have employees who are members of a volunteer emergency management organisation and are required to attend to such emergencies. (See: How do you manage bushfire-fighting staff?)
How does the law apply in these situations and what options are available to you and your employees when dealing with any sort of natural disaster?
 
When employees miss work due to bushfires
 
Whether or not employees are paid when they’re unable to attend work because of factors outside their control depends on the applicable award, agreement or employment contract. However, in the absence of a specific provision, employees aren’t entitled to payment where they are unable to attend work because of natural disaster. Because the incidence of natural disasters is low in most workplaces, other arrangements may be agreed upon.
 
How do flexible work arrangements apply?
 
All modern awards include a flexibility term that enables an employer and an individual employee, and/or a majority of employees in a particular enterprise, to amend certain terms of the award through a ‘flexibility arrangement’, provided the employee is not disadvantaged in comparison to the award.
 
There may also be provisions in a modern award that provide flexibility, even in the absence of a flexibility arrangement. Where an employee cannot attend work because of bushfires the employer could offer other alternatives to affected employees, subject to the employee’s agreement. These alternatives may include: accessing a bank of rostered days off (RDOs), taking time off in lieu of overtime or offering access to forms of paid leave, such as annual leave or long service leave.
 
When can employees be stood down?
 
The provisions of the Fair Work Act 2009 prescribe, in general terms, the circumstances in which an employee may be stood down without pay by the employer, although there is no specific reference to circumstances preventing work from being performed. To activate the stand-down provisions of the Fair Work Act (s524), it’s important for to establish that the employee can’t be usefully employed because of a stoppage of work for any cause for which the employer cannot reasonably be held responsible.  
Example
 
If the employer’s premises have been damaged by bushfires, this would meet the criteria for standing down employees without pay; that is, they can’t be usefully employed because of the danger of bushfires or that bushfires have caused power failures to the business.
The meaning of the term ‘usefully employed’ is critical in determining whether the employer is justified in applying the stand-down provision to a particular circumstance. While the term is not defined by the Fair Work Act, the employer must show that all possible steps were taken in trying to find useful work.
 
This doesn’t mean you’re required to offer (say) a tradesperson labouring work, although you may offer such work if the employee agrees, while the employee would not be required to accept the offer of labouring work. However, if challenged by the employee, the onus lies with you to justify the reason for standing down the employee without pay.
 
An employee is not taken to be stood down without pay under the Fair Work Act during a period where the employee is taking paid leave (eg annual leave, long service leave, a public holiday) or authorised unpaid leave (eg unpaid community service leave). A period of stand-down without pay counts as service for the purposes of the Fair Work Act.

It should be noted the Fair Work Act (s524) does not apply if an enterprise agreement or contract of employment contains provisions which allow for the standing down employees when they cannot be usefully employed.
 
Access to paid carer’s leave
 
In certain circumstances, it may be possible for an employee to take paid carer’s leave; for example, if the bushfire means the closure of the school attended by an employee’s child which then requires the employee to provide care. Casual employees are entitled to two days of unpaid carer’s leave in the same circumstance.
 
What an official state of emergency means
 
The New South Wales Government has declared a state of emergency for the entire state for the next 30 days. This means the relevant authorities — State Emergency Services, fire services and the police — have the power to order people to evacuate premises that may be endangered by bushfire.
 
An order from emergency services to evacuate a workplace means that employees can’t be usefully employed, which could trigger stand-down provisions.
 
Company policy — be proactive
 
Rather than dealing with issues when a natural disaster occurs, you should develop a policy with respect to options available to employees when a natural disaster happens. This may include working from home, where possible, and options to take paid leave rather than being stood down without pay. This is separate from workplace health and safety policies, which cover such matters as emergency evacuation procedures.
 
Disaster Recovery Allowance — NSW bushfires — info for employees
 
The Australian Government has announced that the Disaster Recovery Allowance (DRA) is available to individuals in New South Wales who were severely affected by the bushfires. People eligible in the Local Government Areas (LGAs) of Blue Mountains, Lake Macquarie, Lithgow, Muswellbrook, Port Macquarie-Hastings, Port Stephens, Wyong and Wingecarribee can claim assistance for income lost due to the fires.
 
The DRA provides payments for up to 13 weeks equivalent to the maximum rate of Newstart Allowance or Youth Allowance for eligible Australian residents. The legislation commenced on 1 October 2013.
 
The Australian Government Disaster Recovery Payment (AGDRP) is also being provided in the above LGAs. Eligible residents can claim payments of $1000 per adult and $400 per child.
 
This assistance is separate from arrangements already provided under the Natural Disaster Relief and Recovery Arrangements, which is jointly funded with the NSW State Government.

Affected residents may also be eligible for personal hardship and distress assistance, including a range of grants administered by the NSW State Government.
 
To lodge a claim or view the eligibility criteria for the DRA or the AGDRP visit http://www.humanservices.gov.au/disaster
 
Further information on Australian Government assistance is available online at http://www.disasterassist.gov.au
Post details