Queensland and New South Wales floods Employment issues
03 March 2022
03 March 2022
In the wake of heavy rain fall and flooding experienced across South East Queensland and New South Wales over the past week, employers are putting in place processes to provide support to their employees, and to balance business needs with employees' personal needs.
Ways in which employers can support their employees include:
The terms of any such arrangements should comply with the requirements in any industrial instrument or contract.
As events permit, arrangements that are not covered by current terms and conditions or policies should be documented. Similarly, as events permit, arrangements that vary current terms and conditions (so far as this can occur) should also be documented.
An Employee Assistance Program offers work based assistance for the emotional and psychological wellbeing of employees (and often, immediate family members).
EAPs can also include a trauma management program. Involvement in a traumatic event can debilitate employees and make it difficult for them to perform their duties. An EAP or trauma management program can provide consultation with management, advice on strategies to move forward and individual or group counselling. Participation in these programs is confidential.
Employers do not necessarily have an obligation to offer an EAP or other assistance. Employers must provide a safe place of work, and offering counselling and other services through an EAP can be an element in providing that safe place of work. Employers should also review their current obligations to employees under industrial instruments, contracts of employment, and policies.
Employers with an EAP in place should ensure employees are aware of and encouraged to access the confidential services offered.
Flexible working arrangements
During and after the flood period, employers may consider consenting to workers working from home (or a suitable alternate location). In agreeing to allow employees to work remotely, employers should:
Employees have leave entitlements under the National Employment Standards and in any applicable industrial instrument. They may also have entitlements under contracts of employment and policies. The minimum entitlements include compassionate leave, personal or carers' leave (for example, due to school or child care facility closures) and community service leave.
Employees who are members of a recognised emergency management body, like SES, are entitled to take unpaid community service leave to allow them to engage in voluntary emergency activities.
Leave may be taken for the period that the employee is engaged in the particular emergency management activity, as well as for reasonable travel and rest time. There is no limit on the amount of community service leave an employee can take.
There is no legal requirement to provide paid community services leave under the Fair Work Act. However, many employers elect to provide paid leave or top-up pay. Employers should also be careful to check whether an employee's employment contract, enterprise agreement and/or applicable award provide for any paid community or emergency services leave entitlements.
The employee must be engaging in the activity voluntarily and either requested to engage in the activity or it would be reasonable for such a request to have been made if circumstances had permitted.
Managing health and safety risks
Employers need to be vigilant in ensuring the health and safety of workers and others in the workplace. Floods present hazards and risks at work not contemplated in times of normal operation.
Employers need to analyse the exposure to hazards and health and safety risks of people at the workplace:
Employers should (in consultation with the workers and workplace health and safety representatives, if required):
In cases where a flood or storm has a significant impact on the business, an employer may need to close a workplace when access to it has been cut off, or no useful work can be performed due to structural damage, power outages, or for safety reasons.
Even if a workplace can remain open, many employees may be unable to attend for work due to road closures, lack of public transport, or being required to deal with personal impact of the emergency. This impact may include property damage, personal injury, loss and grief.
An organisation forced to temporarily close a workplace may in some circumstances stand employees down without pay. If an applicable industrial instrument or contract of employment does not have any stand down provisions, national system employers may rely on the stand down provisions in section 524 of the Fair Work Act. These provisions apply if an employer can establish closure of the workplace was for a reason for which the employer could not reasonably be held responsible. In the current circumstances, flooding of a workplace is likely to meet this description.
If a stand down occurs under the Fair Work Act, an employer is not required to make payments for that period, but may choose to do so anyway.
When work premises, plant and/or equipment are unavailable or non-functional, some employers may need to ask their employees to perform other duties. This might involve clean-up work or other alternative work that the employees are skilled and competent to perform but does not form part of the employees' ordinary duties.
Employers should firstly clearly explain what is necessary, how it is important to the future of the business, and seek each employee's agreement to perform any different duties. Employers should carefully consider any task specific safety and training requirements (for example, the safe use of substances and equipment).
If individual employees or groups of employees are not willing to perform alternative duties, and the circumstances require, an employer may need to consider whether it can lawfully and reasonably direct the employee(s) to do so.
The scope of an employee's duties may be controlled by the terms of the employee's employment contract, an enterprise agreement and/or the applicable award. To avoid industrial disputes or breach of industrial instrument/employment contract claims, employers should carefully consider whether any limitations apply and if so, how this can be managed.
Employers may also need to consider whether additional employment benefits (such as penalty rates and allowances) may apply to the alternative work performed by an employee. If so, employers need to explain these conditions to employees.
Regrettably, some businesses may be irreparably damaged where the effects of the flooding is especially significant or ongoing. In such cases, employers will be compelled to consider their obligations under any redundancy provisions in applicable industrial instruments, the Fair Work Act, contracts of employment and policies. These obligations may include notification, consultation and redundancy or permanent redeployment (including to an associated entity). Employers forced into administration, liquidation or receivership as a result of flood damage should calculate employee liabilities and inform their administrator accordingly.
In particularly severe cases, the issue of business recovery and restoration, or business resumption, arises. This is concerned with keeping people employed and safe, and keeping the business running.
Immediate recovery actions
Immediate recovery actions relevant to employment include:
Employees will rely on employers for support after an emergency. Employers should consider the range of support measures they can provide or arrange for, including the arrangements discussed in the "How employers can support employees" section above.
Employers will need to consider appropriate consultation with employees and, where required or desired, unions. Consultation may be required under an industrial instrument.
Work resumption plan
Employers will need to develop plans for workers to resume work and ultimately, to return to the workplace. Matters to consider include:
Authors: Trent Sebbens, Partner; and Ellen Mayr, Senior Associate.