Don’t get burnt by legal obligations

09 February, 2018

Employers have legal obligations to effectively manage leave of their staff who serve the community as emergency management volunteers.

With bushfire and cyclone season upon us, employees who are emergency management volunteers will be called away from their workplace to help protect their community.

And when staff answer the call, employers have legal obligations to effectively manage their leave.

Community service leave

Community service leave – derived from Division 8 of the National Employment Standards (NES) contained in the Fair Work Act 2009 – allows employees to access unpaid leave where they are engaged in eligible community service activities that require them to be absent from work.

While this can also cover leaving work for attendance at jury duty, it allows for engagement in voluntary emergency management activities, defined in the Act as:

  • activities involving dealing with an emergency or natural disaster where the employee’s involvement is voluntary and
  • the employee is a member of, or has a member-like association with a recognised emergency management body and
  • either the employee was requested by or on behalf of that body to engage in the activity or it would be reasonable to expect that such a request would have been made, circumstances permitting.

Eligible community service activities include the time engaged in the activity, the time reasonably spent travelling in relation to the activity and reasonable time to rest immediately following the activity. There is no specified period of time that the absence must be for.

However, the period must be reasonable. When determining whether a period of time off is reasonable, employers should take into consideration the points mentioned above.

Employees who wish to access community service leave must notify their employer as soon as practicable, inform their employer of the expected time period of the absence and comply with any requests for evidence. Where these requirements have been met, the leave request cannot be denied.

Paid leave

While community service leave under the NES is unpaid, there is also relevant State legislation that applies which may provide a greater benefit to employees in the form of paid leave.

In Western Australia, the Emergency Management Act 2005 (WA) (EM Act) provides that employees, including casual employees, who are temporarily absent from work to carry out emergency management response activities are entitled to the following:

  • paid remuneration for the period of the employee’s absence, calculated at the employee’s ordinary rate of remuneration for the time they would ordinarily have worked
  • their service not to be broken by the leave period
  • their employment is preserved (i.e they must not be terminated, demoted, refused promotion or transfer or otherwise ‘injured’ in their employment).

The EM Act defines emergency management response as:

  • the employee undertaking an activity that involves responding to an emergency
  • the employee carries out the activity on a voluntary basis
  • the employee is a member of, or has a member-like association with, an emergency management agency and
  • the employee was requested by or on behalf of the emergency management agency to carry out the activity or no such request was made, but it would be reasonable to expect that, if the circumstances had permitted the making of such a request, it is likely that such a request would have been made and
  • an employee does not carry out an emergency management response if the activity involves prevention of, preparedness for, or recovery from, an emergency.

Training activities or other activities relating to recovery work, such as cleaning up in the aftermath of an emergency, will not be paid unless the employee wishes to access their paid annual leave entitlement.

For more information on employer obligations relating to community service leave, contact the CCI Employee Relations Advice Centre on (08) 9365 7660 or advice@cciwa.com