By Michael Selinger
For safety reasons, including loss of power or structural damage, many employers impacted by the recent bushfires may be required to temporarily cease operations and stand down employees or manage employee absences in connection with a bushfire. It is important to understand what steps an employer can take regarding such a stand down.
Statutory entitlement to standing down employees during a stoppage of work
The Fair Work Act 2009 (Cth) (FW Act) allows an employer to ‘stand down an employee during a period in which the employee cannot usefully be employed because of … a stoppage of work for any cause for which the employer cannot reasonably be held responsible’ (section 524(1)(c) of the FW Act).
A natural disaster or emergency situation, such as a bushfire, which forces a business to stop work would be the kind of event which may allow a business to stand down its employees under section 524 of the FW Act.
The ability for an employer to stand down an employee in these circumstances is subject to any provisions concerning work stoppages and stand downs in an enterprise agreement or contract of employment that applies to the employer and employee. If an enterprise agreement or contract of employment contains provisions concerning stand downs during a work stoppage, those provisions will apply.
A ‘stand down’ arrangement due to a stoppage of work under the FW Act is different from a ‘close-down’ period where an employee may be directed to take paid annual leave.
Employers may not be required to pay employees for the stand down period
Ordinarily, when an employer does not require work to be performed by a permanent employee, subject to an employee’s agreement, an employer will have a common law duty to continue to pay the employee for the period.
However, in cases where an employer experiences a stoppage of work and stands down employees in accordance with section 524 of the FW Act, an employer is not required to make payments to those employees for the period of the stand down (section 524(3) of the FW Act).
If an employer has an enterprise agreement or employment contract containing provisions concerning stand downs during a work stoppage, those provisions will apply.
Service related entitlements continue to accrue during a stand down period
An employee who has been stood down will continue to accrue service-related entitlements during the stand down period.
Employees may take paid or unpaid leave entitlements during the stand down period
Given that most employers will not be required to make payments to employees during a stand down period, employees (other than casuals) may seek, and are entitled to take, accrued paid annual leave during this period.
Should an employee not have sufficient annual leave accrued to cover the period of the stand down, employers may consider offering or agreeing to provide those employees with annual leave in advance. However, there is no obligation for employers to offer or provide annual leave in advance during a stand down period.
If an employee does take annual leave (or other paid leave) during the stand down period, the employee will not be taken to be stood down and will continue to accrue service-related entitlements for that period.
Employees may also take other approved paid or unpaid leave entitlements during the stoppage of work, where applicable.
Impacted employees may seek to take leave entitlements
Separate to a stand down period, employees who are dealing with the impact of the fires, such as employees who wish to monitor or defend fires near their property or who wish to evacuate due to the fires may be unable to attend work.
Employees impacted by the bushfires may request to take paid and/or unpaid leave entitlements either during a stand down period or in response to the threat or impact of the bushfires. There is no general paid or unpaid leave entitlement for employees impacted by an emergency situation or natural disaster.
However, employees may seek to take leave such as annual leave, personal leave, compassionate leave or Defence Reservist leave. Further, an employee can take unpaid community service leave for an eligible ‘voluntary emergency management activity’ such as a bushfire, so long as they are volunteering or are a member of an emergency management body such as the State Emergency Service, Rural Fire Service, Country Fire Authority, RSPCA or WIRES.