Australian Workplace Lawyers extends its sympathies to everyone who has been affected by the flood crisis. We recognise that many people face difficult times and urge that employers and employees take a long term approach and work through employment related issues in a cooperative and humane way where possible. Both employers and employees (and the authorities) should cut each other some slack over the coming weeks.
For instance, where an employee is unable to get to work because of flooding or is involved in the clean up process, employers should consider granting special paid leave or asking that affected employees take annual leave or unpaid leave in the short term. Only where an employee’s services are indispensable should such a request be refused. Carer’s leave may be relevant where an employee is required to look after a family member. Employees who are members of the SES or other recognised emergency management bodies are entitled to reasonable unpaid leave to attend to their emergency service duties.
What are some of the issues that an employer might face? Firstly, if a workplace is affected by flooding, employees can be asked to voluntarily help with clean up work and in most instances there will be no issues. However, this will generally be a personal choice for employees and an employee who chooses not to assist should not be treated adversely. Employees on hourly rates of pay should be paid for their time whilst this is not necessarily compulsory for salaried employees. Where practical, employers should consider allowing employees to work from home or redeploying them to work from another site for a short time. Where an employer is a franchisee or part of a larger group, arrangements may be able to made for employees to work elsewhere in the short term. Employees should be given the option of electing to take annual leave where appropriate.<
In extreme situations, the Fair Work Act enables an employer to stand down an employee during a period in which they cannot usefully be employed because of a stoppage of work for which the employer cannot reasonably be held responsible. However, employers should check that there is nothing in any applicable industrial award or enterprise agreement to the contrary before considering this option further. This option should only be used as a short term measure for several days or a week or two at most and only in extreme situations. Employees should not be left in limbo for lengthy periods if possible. If business is going to be interrupted for a long period, it may be necessary to consider the harsh reality of redundancies. If so, employers should be mindful of their obligations under their contracts, policies, applicable awards and enterprise agreements and the Fair Work Act.
Employers should also be mindful of their continuing obligations to provide employees with a safe workplace and practically should consider the risks to employees in working in flood affected areas or in working for long periods without a break (particularly for award employees).
And whilst volunteers are welcome, employers should be mindful that their insurance might not cover injuries suffered by volunteers. This should be checked with your insurance company and/or WorkCover.
Please let us know if there are any particular queries we can assist with.