Workers who take time off because their house or workplace has burnt down may be covered under special leave provisions or be left in the cold, depending on the circumstances.
Anthony Forsyth from the Graduate School of Business and Law at RMIT University in Melbourne said the Fair Work Act has provisions for employers to stand people down without pay in circumstances where there is a stoppage of work for a reason that is not their fault or beyond their control. Section 524 which allows a stoppage of work for any cause “for which the employer cannot reasonably be held responsible” could include natural disasters such as bushfires.
But employees are not taken to be stood down if they are on paid leave.
“If you are on already on annual leave, your entitlements would continue for the duration of that leave,” Professor Forsyth said.
Employees would mostly need to rely on the different types of leave available to them. Whether an employee who lost their house would be paid during time taken off would largely be at the discretion of employers.
“There is no specific leave that deals with this sort of circumstance,” Professor Forsyth said.
“Some EBAs [enterprise bargaining agreements] allow the employer and employee to agree on unpaid or paid leave in non-specific circumstances that arise that could deal with this sort of situation.”
Joellen Riley Munton, professor of law at the University of Technology Sydney, said it would be open to employers to allow employees to take personal leave in emergency situations and some EBAs may have provisions dealing with this.
“If your place of employment burns down it would depend on whether the employer had another location or could accept service from home or somewhere else,” she said. “If they could, then your employment contract would not be terminated just because the work location disappeared.
“In the case of complete destruction of a small business I imagine the employer could say that the employment contract has been frustrated.”
Senior Employment Relations Adviser from Employsure, Michael Wilkinson, said it was important for employers to apply the correct employee entitlements during a closure as a result of an emergency.
“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,” he said.
Mr Wilkinson said employers and business owners had a range of options such as asking employees to take paid annual leave or considering flexible work arrangements, like working from home.
He said a significant bushfire event would qualify an employee to take carer’s leave to deal with 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.
“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),” Mr Wilkinson said.
“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.”
Australian Council of Trade Unions assistant secretary Liam O’Brien encouraged “all employers to be supportive of bush-fire-affected employees acknowledging the extraordinary challenges posed by this unprecedented crisis”.
“The ACTU urgently calls on the federal goverment to provide a comprehensive financial support package for bush fire affected communities.”
Source: Thanks smh.com