The recent flooding in Queensland has caused many to ask
questions about what entitlements employees have during times of
natural disasters. The National Employment Standards provide some
of the key provisions that employers should have in mind. These are
set out below.
If an employee has accrued a certain amount of annual leave,
that employee can apply and by mutual agreement take annual leave
at any time.
Furthermore, an employer may require an award / agreement free
employee to take a period of paid annual leave if that requirement
Circumstances which are seen as reasonable are where an employee
has accrued an excessive amount of annual leave or where the
business shuts down for a period.
However employers may also have the right, under the Fair
Work Act 2009, in certain circumstances, when there is a
stoppage of work for any cause for which the employer cannot
reasonably be held responsible (such as natural disasters), to
stand down an employee for that period in which the employee cannot
usefully be employed. Employers are not obliged to pay employees
during such a period. However, an employee cannot be stood down
during a period of authorised leave.
Enterprise Agreements, contracts and Awards sometimes have stand
down provisions. Where such provisions are made, those stand down
provisions apply instead of any provisions under the Fair Work
Community service leave
Where an employee decides that he or she wants to help out in a
volunteer capacity in times of disaster (for example by
volunteering for the State Emergency Service
(SES)), that employee has certain rights under the
National Employment Standards.
The leave as provided for under the Fair Work Act 2009
can consist of time when the employee engages in the activity,
reasonable travelling time associated with the activity and
reasonable rest time immediately following the activity. Further,
the absence must be reasonable in all the circumstances.
Eligible community service activities include voluntary
emergency management activities, however, such activities are only
covered by the Act in circumstances where the employee is a member
of, or has a member like association with, a recognised emergency
An employee taking part in such activities must provide their
employer with notice as soon as practicable (which may be a time
after the absence has started) and must advise the employer of the
period, or expected period of the absence.
Furthermore, the employee must, if required by their employer,
produce evidence that would satisfy a reasonable person that the
absence is because the employee has been or will be engaging in an
eligible community service activity.
Personal / carer's leave
There are several circumstances during a disaster period, during
which an employee may take personal / carer's leave.
It may be because the employee him or herself is not fit for
work or it may also be to provide care or support to a member of
the employee's family or household, who requires support
because of a personal illness or injury or an unexpected emergency.
Such circumstances are covered by the personal / carer's
Further, the employee may take up to two days of unpaid personal
/ carer's leave in the same circumstances, even where there
is not personal / carer's leave accrued.
Employees are entitled to up to two days of compassionate leave
for each occasion when a member of the employee's immediate
family or a member of the employee's household contracts or
develops a personal illness that poses a serious threat to his or
her life or sustains a personal injury or dies.
Notice and redundancy
Where a business, is forced to make employees redundant, the
National Employment Standards provide guidance on the amount of
notice and severance pay due to employees.
However, agreements and awards may have additional requirements
with respect to redundancy such as a requirement that the business
consult with employees about such decisions before making employees
redundant. Such awards and agreements may also refer to industry
specific redundancy schemes or have more generous provisions than
are provided under the Fair Work Act 2009.
For further guidance on the National Employment Standards follow
the link below.
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.
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