How do you manage bushfire-fighting staff?

Analysis

How do you manage bushfire-fighting staff?

Whether or not your business or your employees are near a bushfire area, you may have employees who belong to volunteer bushfire brigades. You need to let them get on with the job, and depending on where you are, you may also be required to pay them for their time spent fighting fires.

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Whether or not your business or your employees are near a bushfire area, you may have employees who belong to volunteer bushfire brigades. You need to let them get on with the job, and depending on where you are, you may also be required to pay them for their time spent fighting bushfires.
 
The National Employment Standards (NES) entitle an employee to be absent from work on unpaid community service leave to engage in community activities, including carrying out voluntary emergency management activities that involve dealing with an emergency or natural disaster, and performing these duties for a recognised emergency management body, such as a State Emergency Services organisation, volunteer bush fire organisation or volunteer rescue organisation.
 
Some state and territory emergency service laws also provide that employers can neither prevent an employee from performing volunteer emergency services work nor victimise the employee in any way in their employment because of their voluntary emergency services activities.
 
Employers in Queensland and Western Australia may be liable to pay employees their ordinary wages while they are performing volunteer emergency management activities.
 
Entitlement to be absent
 
The Fair Work Act 2009 (s108) states that an employee who engages in an eligible community service activity is entitled to be absent from his or her employment for a period if the period consists of one or more of the following:
    • time spent engaging in the activity
    • reasonable travelling time associated with the activity
    • reasonable rest time immediately following the activity
    • in the case of emergency service activity, that the employee’s absence is reasonable in all the circumstances.
Accrual of annual leave and personal/carer’s leave
 
While community service leave is unpaid authorised leave, an employee continues to accrue paid annual leave and paid personal/carer’s leave under the Fair Work Act (s22(2)(b)) when absent on this unpaid leave.
 
Dismissal is usually unlawful
 
What can you do if a critical employee spends a considerable time away fighting bushfires? The short answer is: not a lot.
 
Fair Work Act — emergency service work protection
 
The Fair Work Act (s772(1)(h)) provides that an employer must not terminate an employee’s employment if that reason is due to temporary absence from work for the purpose of engaging in voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.
 
Most state and territory emergency service legislation also provide protection from dismissal when an employee is absent on emergency service work duties. Some state and territory emergency service laws may also provide that an employer cannot prevent an employee from performing voluntary emergency services work, nor victimise the employee in any way in his/her employment because of the emergency services activities.  
Example
 
The State Emergency & Rescue Management Act 1989 (NSW) — Part 3A — prevents the employer from victimising an employee performing volunteer emergency work. An employer ‘victimises’ an employee if the employer:
      • dismisses the employee from employment
      • alters the employee’s position in his or her employment with the employer, or alters the circumstances of the employee’s engagement by the employer, to the employee’s prejudice
      • otherwise injures the employee in his or her employment with the employer.
If you as an employer breach the NES provisions covering community service leave, an employee may use the usual procedures to resolve the alleged breach.
 
 
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