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NSW bushfires: What are employee entitlements during catastrophic events?



News | Workplace

By Loren Webb

Catastrophic weather conditions including extreme heat, strong winds, and low humidity are forecasted for Sydney and its surrounding regions today – the first time the NSW Rural Fire Service has issued the maximum level of warning in ten years.

While Australia can experience a variety of natural disasters and wild weather conditions, such as floods, bushfires, tropical cyclones, and severe storms.

These events can cause devastation and major disruptions to the people, businesses, and workplaces that are affected.

Employers must take this time to plan ahead under their obligations to ensure the safety and wellbeing of their employees.

What if employees cannot attend work due to a natural disaster or emergency?

According to Senior Employment Relations Adviser from Employsure, Michael Wilkinson, “In some circumstances, an employee may have entitlements under their Award or Agreement that are relevant when an employee is unable to attend work due to an emergency or natural disaster. If no such entitlement exists, there are a range of options available to employers and employees depending on the circumstances.”

What if the employer temporarily shuts down the business? 

Mr Wilkinson says, if your employer decides to temporarily stop business operations or shutdown the workplace as a result of a natural disaster or emergency, “It is important for employers to apply the correct employee entitlements during the closure. If the closure falls within the stand-down provisions, then the employer might not be required to pay the employee. If the business is closed and it otherwise could have operated, an employee could be entitled to payment.”

Can employers stand employees down without pay?

The Fair Work Actincludes 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 or emergency.

However, according to Mr Wilkinson, “It is not mandatory for stand downs to be unpaid. Your employer may choose to continue to pay staff, but this is at their discretion.”

“Although employers aren’t required to pay employees during the catastrophic bushfires, many will choose to show compassion and do so anyway. The money goes a long way to support families and the community at this devastating time.”

If NSW employers choose to stand down employees during this time, “It’s important they notify those employees in writing (where possible), including the date which the stand down begins, whether the employees will or will not be paid, and the impact on other employee entitlements,” he said.

What are the alternatives to standing down employees?

Mr Wilkinson encourages NSW employers and business owners to consider a range of options to offer employees during this devastating time, such as:

  • Asking employees to take a period of paid annual leave
  • Where appropriate, consider flexible work arrangements, like working from home.
  • Where there is more than one worksite or workplace and not all sites are affected by the disaster, consider options for sharing work and hours among sites

An employee’s home was badly affected by the natural disaster. Are they entitled to paid or unpaid leave to sort out the personal problems caused by the natural disaster?

“Generally, yes, a significant bushfire event will qualify an employee to take carer’s leave to deal with the aftermath of an unexpected emergency and to support their immediate family or household.”

Permanent staff who have accrued annual leave may also use their annual leave entitlements in these circumstances (with the employer’s agreement) according to Mr Wilkinson.

“Where a member of an employee’s immediate family or household sustains a life-threatening injury or illness, or dies, the employee is entitled to two days’ paid compassionate leave (unless they are casual employees, in which case the leave is unpaid).”

“Where an employee is not entitled to any of the above paid leave, an employer can allow the employee to take paid or unpaid ‘special leave’ to address their personal circumstances at this difficult time.”

“Obviously such times are also difficult for businesses and it is vital that employers and employees communicate about their plans to deal with the fires.”

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