In this article, we take a look at the various scenarios that an employer may be facing, explain their rights and obligations and look at some of the options to manage the situation.
Temporary Closure Of Business And Standing Down Employees
During a natural disaster, a business may cease to operate temporarily for reasons beyond their control. Under the Fair Work Act 2009 (The Act), an employer retains the right to stand down employees without pay if there is no useful work available. See s524 and 525 of the Act.
If the employer and its employees are covered by an Award or Enterprise Agreement (EA), the employer should consult their respective Award/EA for relevant stand down provisions if any. Before standing down employees without pay, an employer should consult with employees and see if any alternatives are available.
Options available include:
- Invite employees to take a period of accrued paid leave or agree to changes to rosters so that ordinary hours are worked at another time (eg, make up time)
- Flexible working arrangements such as work from home or working at other sites which are not affected by natural disaster
Employee Taking Time Off Due To The Natural Disaster
Natural disasters and emergencies often result in employees taking time off to care for their relatives and family. Employers should assess requests on a case by case basis.
Employers should note the health and wellbeing of their employee during distressing times and be flexible in terms of the evidence requirements during these times, because some facilities may not be readily available for employees to gain access to and obtain evidence.
Personal/Carer’s Leave (PCL)
Under the Act, if the employee or an immediate family member of the employee requires care or support, the employee would be eligible to receive paid PCL to assist them. In the event a school is closed due to natural disaster, the employee may be eligible for PCL to take care of their child as this may be treated as an “unexpected emergency”.
What is meant by “an unexpected emergency” is not clearly defined in the Act, therefore it must be assessed on a case by case basis.
If the employee has exhausted their PCL balance, they will be eligible to claim an additional 2 days of unpaid PCL for each permissible occasion.
Casual employees are also entitled to claim 2 days of unpaid carer’s leave for each occasion when a member of the employee’s immediate family or household requires care or support because of a personal illness, injury, or an unexpected emergency.
If the employer and its employees are covered by an Award or Enterprise Agreement (EA), the employer should consult their respective Award/EA for relevant provisions.
Under the Act, all employees are entitled to 2 days of compassionate leave (paid for permanent employees) for each permissible occasion. Permissible occasion includes family sustaining life threatening injury or death.
This maybe prevalent during times of natural disaster where homes are destroyed and people sustaining serious injuries or even death. Consult your respective Award/EA for relevant provisions.
Community Service Leave To Engage In Emergency Management Activities
Under the Act and the NES employees are eligible to take community service leave:
- Members of a recognised emergency management body
- Undertaking certain emergency activities dealing with natural disaster
- The amount of leave must be reasonable by considering:
– time when the employee engages in the activity
– reasonable travelling time associated
– reasonable resting time
Under the Act it is all about what is reasonable, requiring an assessment on a case by case basis.
Despite the Act not requiring payment for such absences, some companies still choose to pay their employees during the leave. Consult your respective Award/EA for relevant provisions.
Process Of Abandonment of Employment And Communication
Without doubt a natural disaster causes severe stress on employees and employers. And could disrupt communication between the employer and employees.
Before proceeding to abandonment of employment, the employer should try their best to make contact with their employee, and take into account the communication difficulties at this time using other available means of communicating, including contacting other family members of the employee that might know why they have not been in contact.
If no contact can be made, normal methods of contact such as writing letters may not work, employers are advised to take extra steps to be confident that their employee has genuinely abandoned their employment.
Contact ER Strategies on 1300 55 66 37 or fill in the Contact Us form if you need any assistance in this issue or any other employment issues.