More floods and cyclones have battered the Australian Eastern Seaboard in the last few weeks with a cyclone and floods hitting Queensland and Northern NSW. What can an employer do in these situations where work is unable to be performed?

One important Fair Work Act provision is that employees may be stood down, that is, employees are not required to work and the employer is relieved of obligation to pay employees for the stand down period.

Employees may have entitlements under their award or agreement that are available when they are unable to attend work due to an emergency or natural disaster, detailed below.

What if an employer has to temporarily close?

The Fair Work Act 2009 (FW Act) allows employers to stand down employees in certain circumstances when the employee cannot be usefully employed. This includes where they can’t be usefully employed because of a stoppage of work for which the employer cannot be reasonably held responsible. This may include work stoppages caused by natural disasters, such as bushfires or floods. An employer is not required to make payments to an employee for the period of a stand down but may choose to pay their employees if they wish.

Under the FW Act employee stand down provisions do not apply during a period when an employee is taking authorised paid or unpaid leave (such as annual leave) or is otherwise entitled to be absent from work (such as on a public holiday).

The FW Act stand down provisions only apply when an employee’s enterprise agreement or employment contract does not contain stand down provisions that deal with the same circumstances. If an employer stands down an employee under an applicable enterprise agreement or employment contract, the employer is required to comply with the terms of the enterprise agreement or employment contract in relation to stand down.

If an employer does stand down employees under the FW Act provisions, best practice is to tell those employees in writing (where possible), including:

• the start date of the stand down
• whether the employees will or will not be paid
• the effect on other employment entitlements.

An employer should also try to update employees about when they believe the stand down will end.

Employees who have been stood down without pay can contact Centrelink to discuss other available options for assistance.

What are the alternatives to standing down employees?

Before standing down an employee, employers should consider all other options available. These may include:

• inviting employees to take a period of accrued paid leave (for example, annual leave)
• requiring employees to take annual leave if their award or agreement allows it, or if the employee is award or agreement free (and the requirement is reasonable)
• if there are multiple worksites and not all sites are affected, consider voluntary work sharing arrangements (for example, employees at non-affected sites may offer to take paid leave while their position is temporarily filled by someone from an affected site)
• where appropriate, consider flexible arrangements, like working from home.

Any arrangements to alter an employee’s working patterns would need to be made in accordance with the FW Act and any relevant award or agreement.

Personal/carer’s leave

Under the FW Act, employees (other than casual employees) affected by a natural disaster or emergency may have an entitlement to take paid sick/carer’s leave. An employee can take accrued paid sick/carer’s leave if they are unfit for work due to an illness or injury or if they need to provide care or support to an immediate family or household member due to illness, injury or in the event of an unexpected emergency. For example, if an employee is injured during a flood or bushfire they may be entitled to paid sick leave. An employee may also be entitled to take sick/carer’s leave to care for their child if for example their child’s childcare closed temporarily due to a natural disaster or another unexpected emergency.

Compassionate leave

All employees are entitled to two days of compassionate leave per occasion to spend time with a member of their immediate family or household who has sustained a life-threatening illness or injury or a death in the family.

Notice and evidence requirements

The National Employment Standards (NES) in the FW Act require an employee to notify their employer when they take sick/carer’s leave or compassionate leave as soon as practicable and the period or expected period of leave. The employer, after being notified, may require the employee to provide evidence to support the reason for taking the leave.

Community service leave

Under the NES, employees who are members of a recognised emergency management body are entitled to take unpaid community service leave for certain emergency management activities such as dealing with a natural disaster.

A recognised emergency management body includes bodies such as:

• the State Emergency Service (SES)
• Country Fire Authority (CFA)
• the RSPCA (in respect of animal rescue during emergencies or natural disasters).

Takeaway for employers

Employers have tools available in these difficult times to reduce the pressure on their business. Stand downs are an immediate solution to a business being unable to open if there is a natural disaster. Employees can also access entitlements such as leave, as they will likewise be suffering the effects of the natural disaster or emergency. Working together is critical in these times.