When natural disasters hit, which they do often in our great land, businesses and staff are often more focused on getting through them than the payroll implications. It is often not until the pays are being run that questions are asked about who gets paid for what. Appropriately managing employment during natural disasters is not top of mind as the waters rise or the fire closes in but it is the focus of this weeks HR Highlight which goes into more depth on the practical concerns for employers in the downstream petroleum industry.
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 can not 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, which covers Fuel Admin workers, does not have any stand down provisions so the Act prevails;
- Vehicle Repair, Services and Retail Award 2020, which covers Fuel Retail workers, does not have any stand down provisions so the Act prevails; and
- Road Transport and Distribution Award 2020, which covers Fuel Transport workers, does not have any stand down provisions so the Act prevails.
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
HR Highlights are things to consider, implement and watch out for in your business. They are provided as general information for you to consider and do not constitute advice. You should seek further advice on your situation by contacting your legal advisor. ACAPMA members can access resources and receive advice, guidance and support from the ACAPMA employment professionals via firstname.lastname@example.org , it is free for members. ACAPMA Membership delivers this and more benefits, see; https://acapma.com.au/membership/ for more information.
Elisha Radwanowski BCom(HRM&IR)