With the Queensland floods finally retreating and normal business resuming, Australian employers are urged to learn from the Queensland experience and carefully consider their legal obligations towards staff affected by unexpected disasters or events.
According to Kristin Duff, Senior Associate at Harmers Workplace Lawyers, as the Brisbane flooding worsened, employers were primarily concerned with their legal obligations towards staff that could not come to work, or to whom work could not be given as a result of the flooding.
She said it was a useful reminder to employers across Australia in regards to their obligations and rights towards employees in the case of unexpected interruptions to business operations.
“There are provisions within the Fair Work Act which enable employers to temporarily ‘stand down’ employees without payment if the employee can not usefully be employed due to a breakdown of machinery or equipment. Such provisions may also apply where employers are unable to provide employees with work due to circumstances outside the employer’s control, such as flooding, fire or electrical failure.
“The stand down provision gives employers an alternative to simply terminating the employment of an employee in situations where the employer temporarily has no work for the employee to perform. The employee remains employed during the period of stand down and as such their continuity of service is preserved. It is important to remember that stand down is only a temporary measure and can not continue indefinitely,” she said.
Ms Duff noted, however, that before employers stand down employees, they need to carefully consider whether or not there is other work the employee could perform or whether it could be performed from another location (e.g. home). Failure to consider alternative work options could potentially give employee grounds to challenge the employer’s decision.
While Ms Duff said many employers had been offering generous assistance to employees affected by the floods such as additional paid time off, accommodation assistance or counselling services, other (especially smaller) employers may not be able to afford to be as generous.
”For businesses which cannot afford to offer additional assistance to their employees (over and above legal requirements), other options to consider are allowing staff to access accrued leave entitlements (such as annual leave, long service leave, and even personal, compassionate or community service leave) or otherwise allowing them to take unpaid leave. It is also necessary to consider flexible work options such as allowing the employee to work remotely or changing their hours.
Ms Duff said employees shared a burden of responsibility to keep their employers informed of their individual situations and to remain flexible. “The reality is this is a difficult time for employers and employees alike and everyone needs to work together to keep things running.
