Has your work been affected by floods or other natural disasters?
Many Australians are currently experiencing difficult times due to extreme weather conditions. Widespread flooding in many states, particularly Queensland has resulted in large disaster areas affecting many residents.
To assist those employees and employers who are affected, the Fair Work Ombudsman can provide practical advice and information about entitlements during floods or other natural disasters.
While the Fair Work Act 2009 does not provide specific leave entitlements where an employee is unable to attend work due to floods or other natural disasters, you may have entitlements under your award or agreement that are relevant to these circumstances.
There may also be state-based advice and assistance available to affected employers and employees. In addition, State occupational health and safety laws provide for a general duty of care toward employees that may need to be considered.
1. What if an employee cannot attend work due to the floods?
In the first instance, you need to check your award or agreement to see if it contains provisions about leave for non-attendance due to floods or other natural disasters.
If there are no provisions in the award or agreement, the employer may decide to approve leave at his or her discretion. An employer could agree to the employee taking paid or unpaid leave.
2. What if the employer shuts down as a result of the floods?
The Fair Work Act 2009 includes provisions which enable employers to stand down employees, without pay, where they cannot usefully be employed during a period because of any stoppage of work for which the employer cannot reasonably be held responsible, such as a natural disaster.
The provisions of the Act only operate where the employee's industrial instrument or contract of employment does not contain a stand down provision. You should check your industrial instrument or contract of employment to see if it contains any stand down provisions.
An award or agreement under the Fair Work Act 2009 may include terms requiring an employee, or allowing an employee to be required to take paid annual leave in particular circumstances, but only if the requirement is reasonable.
3. Are parents/carers entitled to carers leave if schools close due to the floods?
Employees who have an entitlement to paid personal leave under the National Employment Standards (NES) in the Fair Work Act 2009 are entitled to take carer’s leave to provide care or support to a member of their immediate family, or a member of their household, who requires care or support because of an unexpected emergency. This includes a natural disaster.
Employees who have exhausted their paid personal leave entitlement, and casual employees, are eligible for up to 2 days unpaid carer’s leave per occasion in the event of an unexpected emergency.
The NES requires an employee to give notice to the employer of the taking of any personal/carer’s leave. An employer after being notified of the taking of personal/carer’s leave may require an employee to provide evidence in support of the leave period.
The NES provides minimum entitlements. You should also check your award or agreement for any specific entitlements to carer’s leave and if there are any provisions in relation to the kind of evidence that an employee must provide in order to be entitled to personal/carer’s leave.
4. Am I eligible to take Community Service Leave to assist with flood-relief operations?
The NES entitles an employee who is a member of a recognised emergency management body to take a period of unpaid leave for the purpose of engaging in an eligible community service activity, such as a natural disaster.
The duration of the period of absence is not specified, however it must be reasonable having regard to the following circumstances:
- the time that the employee is engaged in the activity,
- reasonable travel time associated with the activity, and
- reasonable rest time immediately following the activity.
An employee who wishes to take a period of community service leave must comply with the notice and evidentiary requirements in addition to meeting all four of the following criteria:
- The employee engages in an activity that involves dealing with an emergency or natural disaster, and
- The employee engages in the activity on a voluntary basis (whether or not the employee directly or indirectly takes or agrees to take an honorarium, gratuity or similar payment wholly or partly for engaging in the activity), and
- The employee is a member of, or has a member-like association with, a recognised emergency management body and
(a) The employee was requested by or on behalf of the body to engage in the activity, or
(b) No such request was made, but it would be reasonable to expect that, if the circumstances had permitted the making of such a request, it is likely that such a request would have been made.
You should check your award or agreement for any specific entitlements to emergency services leave.
Contact us for further information and advice to help you understand your entitlements under the Fair Work Act 2009.
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