Natural disasters, such as cyclones, floods, and bushfires, can disrupt workplaces and create significant challenges for employers. Balancing employee safety with legal obligations under Australian law is critical during these events.
This guide provides practical advice for employers on managing employees in the face of natural disasters. Written by our Brisbane employer lawyer, with a focus on compliance with the Fair Work Act 2009 (Cth) and Work Health and Safety (WHS) legislation.
Key Takeaways
- Employers have a duty under WHS legislation to ensure employee safety during natural disasters, including taking proactive steps to minimise risks.
- The Fair Work Act 2009 (Cth) governs stand-down provisions and payment obligations during workplace closures.
- Employees must generally be paid unless they are lawfully stood down or agree to take leave.
- Employers can use Individual Flexibility Agreements (IFAs) to provide tailored solutions for employees during disruptions.
- Clear communication and documentation are essential to avoid disputes and ensure compliance.
Understanding Employer Obligations During Natural Disasters
Work Health and Safety (WHS) Obligations
Under section 19 of the Work Health and Safety Act 2011 (Cth), employers must ensure, so far as is reasonably practicable, the health and safety of their workers. This includes:
- Assessing risks posed by natural disasters, such as unsafe travel conditions or workplace hazards
- Taking proactive steps, such as closing workplaces or directing employees not to attend work if conditions are unsafe
- Communicating safety measures clearly to employees
Failure to comply with WHS obligations can result in significant penalties, including fines and liability for workplace injuries.
Payment Obligations Under the Fair Work Act
The Fair Work Act 2009 (Cth) outlines specific rules for employers. In relation to employee entitlements during workplace closures:
Stand-Down Without Pay (Section 524)
Employers may stand down employees without pay if:
- There is a stoppage of work for which the employer cannot reasonably be held responsible (e.g., a cyclone or flood)
- Employees cannot be usefully employed during this period
Payment During Anticipatory Closures
If an employer directs employees not to attend work in anticipation of a natural disaster (e.g., for safety reasons under WHS legislation), employees must still be paid unless:
- They agree to take annual leave, unpaid leave, or leave in advance
- An Individual Flexibility Agreement (IFA) is entered into to vary the terms of the award or agreement
Using Leave and Flexibility Options
Directing Employees to Take Annual Leave
Most modern awards allow employers to direct employees to take annual leave if the direction is reasonable and complies with notice requirements.
For example, the Manufacturing and Associated Industries and Occupations Award 2020 and the Clerks – Private Sector Award 2020 contains similar rights for employers.
- Shorter notice periods may be reasonable in emergencies if agreed upon by employees
- Employees without sufficient leave balances may be offered unpaid leave or leave in advance
Individual Flexibility Agreements (IFAs)
IFAs allow employers and employees to agree on variations to certain award terms to meet specific needs. During natural disasters, IFAs can be used to:
- Allow employees to take time off during ordinary hours and make up the time later (similar to “make-up time” provisions in some awards)
- Formalise arrangements for time off instead of payment for overtime
- Adjust work hours or rosters to accommodate cyclone preparations
Steps to Implement an IFA:
- Ensure the agreement is genuinely made and results in the employee being better off overall
- Document the IFA in writing, specifying the terms being varied and how the employee benefits
- Provide a copy of the IFA to the employee
- Allow either party to terminate the IFA with appropriate notice
Communicating with Employees
Clear communication is essential during natural disasters to ensure employees understand their rights and obligations. Employers should:
- Notify employees of workplace closures or stand-downs as soon as practicable
- Provide reasons for decisions, such as government warnings or weather forecasts
- Outline employee entitlements, including options for leave or flexibility arrangements
- Document all communications to avoid disputes
Frequently Asked Questions
Can I stand down employees before a cyclone hits?
No, under section 524 of the Fair Work Act 2009 (Cth), stand-downs without pay can only occur when work has ceased, and employees cannot be usefully employed. In anticipation of a cyclone, employees must still be paid unless they agree to take leave or an IFA is in place.
Do I need to pay casual employees during workplace closures?
No, casual employees are not entitled to pay during closures as they are only paid for hours worked.
Can I direct employees to take annual leave during a natural disaster?
Yes, most awards allow employers to direct employees to take annual leave if the direction is reasonable and complies with notice requirements (typically four weeks). Shorter notice may be acceptable in emergencies if agreed upon by employees.
What happens if an employee refuses to take leave or unpaid leave?
If an employee refuses to take leave and work has not ceased, they must continue to be paid unless a lawful stand-down applies or an IFA is agreed upon.
How can I ensure compliance with WHS obligations during a cyclone?
To comply with WHS obligations, assess risks, close workplaces if conditions are unsafe, and communicate safety measures clearly to employees. Failure to act could result in penalties under WHS legislation.
By understanding your obligations under Australian law and taking proactive steps, you can effectively manage employees during natural disasters while ensuring compliance with both WHS legislation and the Fair Work Act. For tailored advice on your specific circumstances, contact our experienced employment lawyers today.
