In areas affected by the devastating Australian bushfires, businesses may be unable to continue operating and employees may be unable to attend work for an extended period of time (for example because they are volunteering with emergency services or because they are personally affected by the fires).
There are also work health and safety considerations in relation to emergency planning and employees working in extreme heat or smoke affected areas.
This article provides a high-level overview of the key issues affecting employers and employees during the ongoing bushfire crisis, with links to more detailed information and assistance. The article focuses on employee entitlements under the Fair Work Act 2009 (Cth) (FW Act). Employers should also check any applicable award, enterprise agreement or employment contract, and be aware of applicable state industrial legislation.
What if a business needs to close temporarily?
Businesses may need to close temporarily because of bushfires, smoke or very hot weather conditions. If this happens, then employers may consider offering employees the choice of taking accrued paid leave (such as annual leave), implementing flexible working arrangements (such as working from home), or sharing work between worksites. Employers may also consider standing down employees, with or without pay.
Employee stand down
The FW Act allows employers to stand down an employee without pay during a period in which the employee “cannot usefully be employed” for reasons including a breakdown of machinery or equipment or a stoppage of work for any cause where the employer cannot reasonably be held responsible: s 524.
This stand down provision doesn’t apply when an employee is otherwise authorised to be absent from work, for example on paid or unpaid leave: s 525. Employees may take paid or unpaid leave during all or part of a period of stand down.
A period of stand down would still count towards an employee’s period of “service” with an employer: s 22.
State industrial legislation, or an award, enterprise agreement or contract of employment may provide different conditions for the stand down of employees.
Employers should communicate with employees about the stand down (preferably in writing), including the start date, whether employees will be paid and the effect on other employee entitlements. Employers should keep employees updated during the stand down about when it is likely to end.
Leave entitlements for employees affected by bushfires
There is no specific form of leave available to those who are impacted by bushfires, for example where their house is under threat or burned down.
Under the FW Act, employees may request paid annual leave and such a request cannot unreasonably be refused: s 88. The annual leave entitlements of employees may be contained in an award, enterprise agreement or employment contract. There is also separate state industrial legislation covering certain employees, such as those in the public service or local government.
Employees may also be entitled to access paid personal/carer’s leave under the FW Act where they are unable to work due to illness or injury (this may include the effects of smoke inhalation) or to care for or support a member of their immediate family or household who is sick, injured or has an unexpected emergency: s 97.
Importantly, casual employees are not entitled to paid annual or personal/carer’s leave under the FW Act.
If an employee cannot take paid personal/carer’s leave, they are entitled to up to two days of unpaid carer’s leave for each occasion when a member of the employee’s immediate family or household requires care or support because of a personal illness or personal injury, or an unexpected emergency affects the member: s 103.
Employees are also entitled to two days of paid compassionate leave for each occasion when a member of the employee’s immediate family has a life-threatening illness or injury or dies: s 104. Such leave is unpaid for casuals.
Leave entitlements for emergency services volunteers and Defence Reservists
Community service leave
A number of emergency services volunteers have been off work for long periods of time during the current bushfire crisis.
The FW Act entitles employees (including casuals) engaged in a “voluntary emergency management activity” to be absent from work for a period consisting of the time they are engaging in the activity plus reasonable travel and rest time: s 108. A “voluntary emergency management activity” is one undertaken for a recognised emergency management body: s 109.
Such leave is unpaid, although an employer may choose to pay employees engaged in these activities.
A period of community service leave under the FW Act would still count towards an employee’s period of “service” with an employer: s 22.
Again, entitlements may vary under an award, enterprise agreement, employment contract or state industrial or emergency management legislation.
Employees who are members of Australia’s Defence Reserves have the usual employee protections, plus additional workplace protections under the Defence Reserve Service (Protection) Act 2001.
Employers are required to release Reservists to undertake defence work and to continue to employ them upon their return. Legislation does not require that Reservists are paid while on leave, but such a requirement may apply under an applicable award, enterprise agreement or contract of employment.
Workplace protections for employees on leave due to the bushfires
Federal and state legislation may make it unlawful to victimise or take adverse action against an employee who is on leave as a result of the bushfires, either as a volunteer or because of the personal impact of the fires.
Work health and safety considerations
Aside from bushfires, common hazards at this time of the year include poor air quality, reduced visibility from smoke and extreme heat. The risks posed by these hazards include respiratory illnesses, fatigue and heat strain.
Employers are obliged to ensure, so far as is reasonably practicable, the health and safety of their workers. In doing so, they must identify relevant hazards and manage risks to the health and safety of workers.
Work health and safety regulations also set out specific requirements in relation to the working environment, including work carried out in heat, the provision of adequate facilities, air quality and remote work. Guidance on how to comply with these requirements is provided in the Code of Practice for Managing the Work Environment and Facilities.
Where possible, work should be re-organised so that strenuous activity is not undertaken when the sun is most intense or when the air quality is hazardous. In some circumstances, it will be necessary for workers to cease work for health and safety reasons.
Outdoor workers should be provided with adequate personal protective clothing, which may include hats, long-sleeved shirts, long pants, breathing masks and sunglasses. They should also be provided with shelter for their breaks, as well as clean drinking water to prevent dehydration.
Where possible, indoor workplaces should rely on air-conditioning to provide cooler working conditions and filter out particles from the air. Air quality should be monitored with the assistance of property managers, and remedied if necessary.
Employers should also be attentive to employees’ mental health and the impact that the bushfire crisis may have on those who are personally affected.
Work health and safety regulations require all workplaces to have emergency plans. These plans must be implemented in the event of an emergency, such as a bushfire.
The emergency plan must include procedures and systems for responding to emergencies, evacuating and communicating with emergency services.
If necessary, emergency services should be provided with access to the workplace. Workers should be instructed to follow the advice of relevant authorities, including evacuating when advised.
If evacuated, workers should not be allowed back onto the workplace premises unless allowed by the authorities.
Useful links to further information
The Fair Work Ombudsman has published a detailed fact sheet on employee entitlements relevant to the bushfires: https://www.fairwork.gov.au/about-us/news-and-media-releases/website-news/bushfires-across-australia
Safe Work Australia has released detailed information on working in air pollution: https://www.safeworkaustralia.gov.au/media-centre/news/bushfires-and-air-pollution
Safe Work Australia has also published guidance material on managing the risks of working in heat: https://www.safeworkaustralia.gov.au/system/files/documents/1902/guide_for_managing_the_risks_of_working_in_heat_1.pdf
The Australian Government has detailed the help available to affected businesses: https://business.gov.au/news/bushfire-support