During times of natural disasters, employers need to be aware of what their employees are entitled to and how this can best be managed.
Businesses affected by a natural disaster
National system employers affected by a natural disaster to the extent that they cannot operate may be able to utilise stand down provisions in the Fair Work Act 2009 (Cth) (FW Act). The FW Act provides that an employer may stand down an employee in certain circumstances, including:
- industrial action (other than industrial action organised or engaged in by the employer)
- breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown
- stoppage of work for any cause for which the employer cannot reasonably be held responsible
If the employee cannot be usefully employed in the business as a result of the above circumstances, no payment for the employee is required. If however, work can continue employers must continue to offer work, or provide payment, for ordinary hours. Employers must also be aware of any stand down provisions in their contracts of employment, enterprise agreements or modern awards that may contain additional terms or obligations to be complied with.
Employers operating in the state system must check their industrial award or agreement for any ability to stand down an employee. Stand down provisions are not contained in the Minimum Conditions of Employment Act 1993 (WA), and contracts of employment may only provide for stand down in the event that the relevant award or agreement allows for stand down to occur.
Award or agreement free employees in the state system must not be stood down without pay.
Employees assisting in an emergency
Employees who are voluntary members of a recognised emergency management body and are called upon to assist in response to an emergency, may access community service leave if they are employed by a national system employer. It is possible that where an employee has not been specifically requested by an emergency management body to assist, community service leave may still be accessible in the event that it would have been reasonable to expect they would have been called upon if the circumstances permitted.
The entitlement to community service leave is a minimum entitlement that must be recognised by all national system employers. The entitlement obliges employers to provide their employee’s with time off to assist with an emergency response, reasonable travel time associated with performing their duties as a volunteer and reasonable rest time immediately following the activity.
The entitlement to leave for the purpose of responding to an emergency for state system employees is derived from the Emergency Management Act 2005 (WA).
Payment for community service leave and emergency management leave
While the Act does not provide for payment during community service leave, the interaction of the Act and the Emergency Management Act 2005 (WA) is such that all employees engaged in an emergency response for a recognised body in Western Australia must be paid their ordinary rate of pay for the time the employee could have reasonably been expected to work while on leave.
Notice and Evidence requirements
An employee must notify their employer as soon as reasonably practicable of their intention to access community service or emergency management leave. An employer may request reasonable evidence from an employee that they were engaged in a coordinated emergency management response. Such evidence may include a statutory declaration from the employee or a letter from the recognised emergency management body supporting the employee’s claim.
Other considerations
Employers may wish to consider developing an emergency management policy to apply a consistent approach across the business.
The following points may be covered in your policy:
- Definition of emergency management response
- Example of a recognised emergency management body
- Employees’ eligibility to community service or emergency management response leave
- Notice and evidence to be provided
- Entitlement to payment for emergency management response leave
- How emergency service leave interacts with other authorised leave
Employees affected by a natural disaster
Employees who have been directly affected by a natural disaster but are not engaged in the response effort as a member of an emergency management body are not entitled to access community service leave. Despite this, employers may wish to consider providing affected employees with an opportunity to access their accrued leave entitlements or unpaid leave. If available, Employee Assistance Programs should also be offered.
Employers requiring further information should contact CCIWA’s Employee Relations Advice Centre on (08) 9365 7660, email [email protected].
