The current bushfire crisis impacting Australia has caused devastation and major disruptions to people, businesses and workplaces. Even if your business has not been directly affected, as an employer it is important to understand your obligations. We have put together a short guide to help you.
Employer’s general duty of care
As an employer (WHS or OHS legislation refers to an employer as a PCBU, an acronym for ‘a person conducting a business or undertaking’) you have a legal duty to workers to ensure so far as is “reasonably practicable”, that a work environment is safe and without risks to health.
This obligation covers everything including smoke inhalation, potential injury or death, including from toxic fumes. You must also ensure that the means of entering and exiting the workplace are without risks to the health and safety of any person.
If you feel there is a fire threat to your workplace then carefully consider all factors before requiring employees to attend work. Ensuring the safety and well-being of you and your employees should always be your first consideration. Consider conducting an online course if you are in a high risk area: https://www.cfa.vic.gov.au/bushfire-safety-for-workers
Employee leave entitlements
Full and part-time employees affected by a natural disaster or emergency may have an entitlement to take paid personal/carer’s leave. For example, if an employee is injured during a flood or bushfire they may be entitled to personal leave.
An employee would also be eligible for personal/carer’s leave if their child’s school closed due to a natural disaster or emergency and as a parent they were required to care for their child.
Employees who have used all of their paid personal/carer’s leave entitlement, and casual employees, are entitled to 2 days unpaid carer’s leave per occasion to provide care and support to a family or household member due to illness, injury or in the event of an unexpected emergency.
All employees are entitled to 2 days of compassionate leave to spend time with a member of their immediate family or household who has sustained a life-threatening illness or injury. Compassionate leave may also be taken after the death of a member of the employee’s immediate family or household.
Full-time and part-time employees are entitled to be paid for periods of compassionate leave.
Notice and evidence requirements
As is usual when taking personal/carer’s leave or compassionate leave, an employee is required to notify their employer as soon as practicable, which may be a time after the leave has started.
After being notified, the employer may require the employee to provide evidence to support the leave period.
Temporarily closing your business
If you have to temporarily close your business as a result of a natural disaster or emergency, you must consider your employee’s entitlements.
Neither of the Road Transport Awards permit you to direct an employee to take annual leave as a result of a natural disaster or emergency; however, through discussion with your employees offering the choice of them taking accrued paid leave is usually to everyone’s benefit.
Another option is to consider whether you can provide flexible working options. This could mean allowing some employees to work from home or other remote worksites.
The Fair Work Act 2009 (FW Act) allows employers to stand down employees in limited circumstances when there is no useful work for them do.
A stand-down is when an employee can’t do useful work because of:
- equipment breakdown, if the employer isn’t responsible for it;
- industrial action, when it’s not organised by the employer;
- stoppage of work for which the employer can’t be held responsible, including severe and inclement weather or natural disasters, as is likely to be the case in the current bush fire crisis.
Employers cannot stand an employee down just because the business is quiet or there isn’t enough work. A stand-down can be unpaid, but you may choose to pay your employees instead.
If your business is affected by bushfire or smoke, we recommend you contact NatRoad for advice before considering the standing down of employees.
Employees engaged in fighting bushfires
Community service leave
The National Employment Standards (NES) provides an entitlement to employees who are members of a recognised emergency management body to take unpaid community service leave for certain emergency management activities such as dealing with a natural disaster.
Under the NES, the amount of time that can be taken is not specified; however, it must be reasonable taking into account:
- the time that the employee is engaged in the activity,
- reasonable travel time associated with the activity
- reasonable rest time immediately following the activity.
An employee who wants to take a period of community service leave must tell their employer as soon as practicable, including the expected period of the absence and provide any required evidence of the reason for the leave. In addition, an employee must also be:
- engaging in an activity that involves dealing with an emergency or natural disaster
- engaging 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)
- a member of, or has a member-like association with, a recognised emergency management body
- requested to engage in an activity, or it would be reasonable to expect that such a request would have been made if circumstances had permitted .
Driver affected by impassable roads
If a long-distance driver is delayed because of an impassable highway, clause 22 of the Road Transport (Long Distance Operations) Award 2010 says that the driver must be paid a maximum of 8 hours in any period of 24 hours but at the prescribed rate, not the cents per kilometre rate.
Need further help?
If you have any questions during this period of bushfire, please contact David or Brett on 02 6295 3000 or email [email protected].