FAQ for Navigating the Floods / Natural Disasters / Inclement Weather

Australians, particularly businesses within the South East Queensland region, are currently experiencing natural disasters, including floods and severe storms.

These weather conditions have impacted many businesses’ operations due to damage, impacted road conditions and work available for their staff.

It is crucial to understand what obligations and options you have as an Employer in navigating these circumstances with regard to leave entitlements, pay obligations and Fair Work options.

wattsnext have created a Frequently Asked Questions (FAQ) below to assist Employer’s with understanding the broad picture. You may contact our consultants with specific scenarios to receive applicable advice.

 1. What if an Employer has to close their business temporarily?

 Employers must undertake due diligence in complying with the Fair Work Act and Industrial Instruments (Awards/Enterprise Agreement) requirements.

Employers can stand down their staff without pay under the Fair Work Act only when the following criteria are met;

• There is a stoppage of work outside their control (meaning it was not the Employer’s decision to close down/cease work; however, this decision/result was made for them by a regulatory body, or by climatic conditions such as flooding). Fundamentally – it must be a stoppage of work for any cause for which the Employer cannot be reasonably held responsible.
• The Employee must be unable to be usefully employed. Employers need to exhaust all avenues to keep their staff at work during these times (work from home for office staff, using a personal computer to do whatever work they can if no Company laptop is available, working at other locations for field-based staff where they can be safely redeployed to, maintenance/cleaning duties such as clearing a workshop from debris/clutter). It is important to understand that usefully employed has a broad application and includes anything that can keep the Employee completing something useful (not necessarily duties/activities that generate revenue).
• There is no provision in the Industrial Instrument (Award/Enterprise Agreement) that provides for a paid entitlement or separate terms in some circumstances, such as weather preventing workers from continuing work. Example: Inclement Weather provisions of the Building and Construction General On-Site Award 2020.

If the above criteria are completed, the Employee has no other work available to complete whatsoever that is reasonably safe to complete. The Employer can stand down the Employee without pay.

 2. How do I stand down staff without pay?

To stand down staff without pay once all criteria are met, Employers should;

• Advise staff in writing that they are stood down without pay and from the date that this stand-down is to operate from.
• Advise of alternative avenues to keep Employee (s) usefully employed being exhausted (work from home, work at other sites, other types of work including cleaning/maintenance) and why these were not viable.
• Advise that during this stand-down period, leave such as annual leave and personal leave will continue to accrue (based on their ordinary hours of work in a day/week); however, it cannot be taken unless approved prior to the implementation of the stand down.
• Note that the Employer will continually be reviewing its business operations and will allocate staff to work as soon as it becomes available so that they may again become usefully employed and be paid accordingly.

3. I only have a few ‘bits and pieces or a very small amount of work available to my staff; what should I do? Can I stand them down?

As the Fair Work Act requires all avenues of useful employment to be exhausted prior to implementing an unpaid stand down, you would be required to allocate these staff to the alternative duties until exhausted in entirety.

Therefore, an office worker would need to be allocated to data entry/simple administrative type tasks until all possible work is exhausted before being able to stand down without pay compliantly.

A field-based worker would need to be allocated to all reasonably safe work – including cleaning/maintenance of the work depot/location of work, notifying clients of any possible delays to projects or work, performing work at other sites if available (Allocated to Location B if there is work available, where Location A is flooded and not accessible).

4. What are the risks of standing down my staff without pay where there is work available, or they were otherwise required by legislation to be paid (including circumstances of only small amounts of work available);

The risks of standing down staff under the Fair Work Act where work is available to include;

• An underpayment claim being made by each member of staff impacted

• The business-facing financial penalties for breach(es) of the Award/Enterprise Agreement.

• The business is facing financial penalties for breaching the Fair Work Act provisions.

5. Can my staff access their leave entitlements? 

• Annual leave can be agreed upon (and should be documented or evidenced in written or software form), including the leave type to be taken (annual) and the dates it will be taken.
• Where Employee (s) have been advised in writing from the Employer that they are stood down prior to a request for annual leave, they will not be able to access their annual leave entitlements, and the Employer can notify that they are on unpaid stand down.
• Where annual leave was applied for and accepted in advance of the stand-down being implemented, the Employee is entitled to still take and be paid appropriately for the approved leave period.
• Personal leave cannot be taken where prior to the period of leave, the Employee was advised of being stood down without pay by the Employer for the duration of the stand down.
• Personal leave can and should be taken where it was provided for (or evidenced in the form of a statutory declaration or medical certificate) prior to any stand down being communicated to the Employee in written form, for the duration of the approved or evidenced period.
• Carer’s leave can be taken where the Employee is required to care for a member of their immediate family or household, or where there is an unexpected emergency (so long as the Employee has not yet been advised in written form that they are on unpaid stand down).
• Compassionate leave can still be taken (permanent and casual staff) and is paid (for permanent staff) where a member of the Employee’s immediate family member or household sustains a life-threatening illness or injury.

6. What about public holiday absences – if my worker is not at work due to the stand down, are they entitled to be paid for public holidays that may fall within that period?

• Permanent Employee (s) (full time and part-time) are entitled to be absent from their employment on a day which a public holiday falls. They are entitled to be paid at their ordinary hourly rate for the ordinary hours they would have otherwise worked had they not been absent due to the public holiday.
• Casual Employee (s) do not have this paid absence entitlement.
• The above requirements still apply during a stand-down – that is, permanent staff are still entitled to be paid for their absence on these day(s) as if the stand down had not been in effect.

The above FAQ is intended to provide employers with a broad understanding of the bigger picture of navigating times such as the floods currently being experienced. Should you wish to receive specific advice on your business or employee circumstances, please get in touch with us at admin@wattsnext.com.au or 1300 092 887.