Australia is the land of flooding rains and raging bush fires. The last few years have driven that point home repeatedly. As another rain bomb and storm front pummels already sodden ground much of the country is facing flooding and storm damage that will impact the ability of staff to get to work, or for the businesses to open at all, so it is time for all employers to review how to appropriately manage employment during natural disasters. This week’s HR Highlight goes into more depth on the practical concerns for employers in the downstream petroleum industry.
Stand Down
Section 524 of the Fair Work Act 2009 (the Act) outlines provisions allowing employers to stand down employees, without pay, when they cannot be ‘usefully’ employed for a specific amount of time, because of a stoppage of work that is outside of the control of the employer. This includes natural disasters, as well as major or key equipment failure that cannot be attributed to the employer (well-maintained equipment).
The term ‘usefully’ is important here, it means that if the business can still utilise the labour of the employee in another area, on another machine or at another work location then they must do so. However, if these options are not available to the business, then they may stand down the employee.
Notice of Stand Down
In the event of a stand down the onus is on the employer to notify employees of the situation that has necessitated the stand down, to communicate the payment situation and to keep the employees apprised of when the stand down is expected to be lifted and normal duties resumed.
Payment and Stand Down
How and what is paid to an employee in the event of a stand down is governed by the employment instrument the contract, Award or agreement. If the industrial instrument does not refer to stand down provisions, then Section 524 of the Act prevails.
The Act states that provided the stand down meets the requirements outlined above the employees can be stood down without pay. This does not mean that the business cannot choose to pay the employee or allow the employee to dip into accrued leave entitlements.
In the downstream petroleum industry the employment instruments generally are:
- Clerks Private Sector Award 2020 does not have any stand down provisions so the Act prevails;
- Vehicle Repair, Services and Retail Award 2020 does not have any stand down provisions so the Act prevails; and
- Road Transport and Distribution Award 2020 does not have any stand down provisions so the Act prevails.
Special considerations
During a natural disaster, safe access to work may cause a stand down or prevent employees from presenting for work. Consideration should be given to these situations before allowing access to the workplace or activating performance management for absenteeism.
Further additional leave provisions may be available to employees who volunteer for community service in the event of a natural disaster.
Fair Work Ombudsman Guidance
Further information is provided by the Fair Work Ombudsman on stand down during a natural disaster see https://www.fairwork.gov.au/pay/pay-during-inclement-weather-and-stand-down#1751-1761.
Here to help
ACAPMA Employment Department professionals are available to assist members with stand down and all employment provisions via employment@acapma.com.au.
HR Highlights are things to consider, implement and watch out for in your business. They are provided as general advice. Members are reminded that they can seek further advice on their situation by emailing employment@acapma.com.au, it’s free for members. ACAPMA membership is affordable at only $810 per year for a single site and valuable with sites gaining HR advice support and representation as well as a raft of other benefits and discounts. Click here to learn more about ACAPMA membership.
Elisha Radwanowski BCom (HRM & IR)
ACAPMA
Source: https://acapmag.com.au/2022/10/floods-standdown-and-impacts-of-disaster-on-pay/.
