Contributions to this article also by Ebony Booth, Seasonal Clerk Workplace Relations Employment & Safety

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 floods.

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 pay?

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 options:

Personal/Carer's 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 needed.

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 flood-affected sites.

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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 particular circumstances.