Contributions to this article also by Ebony Booth,
Seasonal Clerk Workplace Relations Employment &
Employers in south-east Queensland may face two significant
employment issues arising out of the recent floods: whether to pay
staff who are unable to come to work or who wish to attend to their
homes or properties affected by the floods; and whether to pay
staff who can come to work but whose workplaces are affected by the
Employers need to consider obligations and rights under the
employment contract, the Fair Work Act 2009 (Cth)
(Act) and any relevant industrial instruments.
Generally speaking, employees will be able to take paid annual
leave if they wish. However, issues may arise where an employee
does not agree to take annual leave.
Here are some common questions that arise and the answers.
Can an employer direct an employee to take annual leave?
The overriding requirement is that any direction for an employee
to take annual leave must be reasonable.
In the case of award- or enterprise agreement-covered employees,
the employer must comply with any provisions in the award or
agreement relating to directing leave. Where no such provision
exists, it is likely that the employee cannot be directed to take
annual leave. For award or agreement employees, the direction must
be reasonable. What is reasonable will depend on factors such as
the time involved and the impact on the business.
Can the employer 'stand down' the employee without
In general terms, employees can be stood down without pay if
they cannot be usefully employed during a period because of a work
stoppage beyond the employer's control.
If the employee is covered by a contract of employment, an award
or enterprise agreement that contains a stand-down provision, this
must be complied with.
It is likely the effects of the recent floods will fall within a
stand-down situation. Employers must also first assess whether the
employee can be usefully employed elsewhere or by other means. The
Explanatory Memorandum to the Act states that an employer cannot
stand down an employee simply because it would be financially
beneficial for the business to do so.
What other leave options are available to employees?
Provided notice and evidentiary requirements are satisfied,
employees may be entitled to seek leave under the following leave
In the case of an unexpected emergency, an employee may take
leave to provide care for a family member. The floods may also
cause schools and childcare facilities to close down, which will
also fall under the scope of an unexpected emergency.
Employees are entitled to 10 days paid personal leave per year
and two days of unpaid personal leave on each occasion it is
Community service leave
Employees who are members of emergency management services may
take unpaid community service leave in accordance with the National
Employment Standards (NES). To be eligible for
leave the employee must be assisting with an emergency or natural
disaster on a voluntary basis.
The duration of community service leave must be reasonable and
take into account the time of community engagement, travel time and
rest time after the service is completed.
What occupational health and safety issues arise?
Employers whose workplaces have been affected by the floods may
need to assess the impact of the floods on safety in the workplace,
including electric systems.
Employers may also need to assess any safety risks associated
with employees whose work involves travelling through or into
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This publication is intended as a first point of reference and
should not be relied on as a substitute for professional advice.
Specialist legal advice should always be sought in relation to any
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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