When disaster strikes: What entitlements do my employees have during the floods?

When disaster strikes and business is suspended or employees can’t get to work, multiple employment entitlements are impacted. In this article, we wrap up some of the most frequently asked questions and examine what, exactly, employees are entitled to in the face of a natural disaster.

Can I stand down my employees?

One of the most frequently asked questions in the face of a natural disaster is, ‘Can I stand down my employees?’. Under section 524 of the Fair Work Act 2009 (Cth) (Fair Work Act), a stand down is available to employers where an employee cannot be ‘usefully employed’ due to:

• industrial action (such as a stoppage of work);
• a breakdown of machinery or equipment for which the employer cannot reasonably be held responsible; or
• other stoppages of work for any cause for which the employer cannot reasonably be held responsible.

The floods in New South Wales have caused several businesses to completely shut their doors, with no useful work left to be performed by any employees. In these circumstances, employers may be able to stand down their employees without pay. However, it’s important to remember the general principle: an employer is only able to stand down employees if they are unable to obtain some benefit or value for work that could be performed by those employees.

If you’ve decided to stand down employees, it’s always best practice to inform employees in writing. If you’re unsure about whether you can stand down your workforce, you should seek legal advice. Unlawful stand downs can result in orders for backpayment, or even fines for breaches of the Fair Work Act.

What if my employees can’t make it to work, for example, because of road closures?

If your employees are unable to come to work because they have been affected by the floods, road closures, or other flow-on affects of a natural disaster, the default position is generally that they will be on unpaid leave until such a time that they are able to perform work again. However, some alternative options exist, including:

• offering employees to take a period of accrued leave (such as annual or long service leave);
• offering employees the option to work at other non-affected sites, if possible; or
• offering employees the opportunity to temporarily work from home, if it is possible to do so.

Are my employees entitled to personal leave?

Inevitably with any disaster, employees may request to take a period of paid personal leave to take care of themselves, or their families. Employees may be entitled to take paid personal leave if:

• they have been injured or become ill due to the floods or natural disaster;
• they need to support or care for a family/household member who has suffered an illness or injury; or
• they need to stay home to care for their children due to unexpected school or childcare closures arising from the natural disaster.

Ultimately, whether an employee is entitled to take personal leave because of a natural disaster will depend on the circumstances. It remains open to employers to ask their employees to provide reasonable evidence to support their entitlement for personal leave. For example, a school closure notice.

Is there anything else I should know?

Separate from the above entitlements, employees who are members of a recognised emergency response body (such as the SES or Fire Service), may be entitled to take unpaid community service leave if they are involved in efforts responding to a natural disaster.

Employers should also be mindful of their work health and safety obligations in times of an emergency. Consider whether it may be appropriate to offer your employees access to an Employee Assistance Program (EAP) to assist with wellbeing from a psychological perspective, or whether there are any physical hazards to manage before returning employees to the workplace and reopening your doors.

What next?

If you feel like a mistake may have been made with employee entitlements, or you’re concerned about how to apply employee entitlements during a natural disaster, it is always best to seek advice early.

For advice on employers’ rights and responsibilities in the event of a natural disaster, contact NRA Legal on 1800 572 679.

By Sarah Morison and Lucia McIvor, NRA Legal