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News Bulletin : ADA News Bulletin February 2011
24 FEBRUARY 2011 Due to the current flood situation the HR advisory service have received many enquiries on employment issues, such as what to pay staff and issues of employees unable to attend work due to floods Due to extreme weather conditions, many Australians are experiencing difficult times as a result of widespread flooding -- particularly in Queensland, Victoria and New South Wales. This has caused destruction in many areas, affecting residents and has resulted in a rise of employment issues. Under the s.524 Fair Work Act 2009 an employer can stand down an employee without pay if they can't usefully be employed during a period because of any stoppage of work for which the employer cannot reasonably be held responsible, such as a natural disaster. The provisions of the Fair Work Act only apply where the employee's industrial instrument (award) or contract of employment does not contain a stand down provision for unexpected emergencies, like natural disasters. For example, the Health Professionals and Support Services Award 2010 contains no provisions in relation to stand down of employees. In such circumstances the employee can take unpaid or paid annual leave, if the requirement is reasonable. Under the National Employment Standards (NES) in the Fair Work Act 2009, employees are entitled to take personal/carer's leave in order to provide care or support to an immediate family member or a member of the household, who requires care or support because of an unexpected emergency, which may include times of natural disaster, schools are closed down due to floods or parents need to provide care for their immediate family injured as a result of floods. In the situation where an employee cannot attend work due to road closure and flooding the employer may decide to approve leave, whether being paid or unpaid leave. However, before approving leave the employer will need to check the relevant industrial instrument to ensure it contains provisions about leave for non-attendance due to floods and natural disasters. Under the Health Professionals and Support Services Award 2010, there are no provisions in relation to non attendance due to a natural disaster. This should not be necessarily confused with the ability of a dental practice to have a temporary 'close-down' (as per clause 31.4 of the Health Professionals and Support Services Award 2010) during the year in order to take annual leave, and to direct staff to do the same. The NES also provides an entitlement for employees to be absent from employment for engaging in an eligible community service activity, of which includes voluntary emergency management activities. Such activity encompasses an employee dealing with an emergency or natural disaster, e.g., State Emergency Services or Rural Fire Service. Under the Fair Work Act 2009, s.772(1)(h), employees cannot be dismissed for taking emergency service leave in these circumstances. Whether employees are paid for leave taken as emergency service leave differs from state to state. To determine if payment is required, employers will need to consult the relevant state or territory laws or call the HR Advisory Service to confirm this. Keep in mind that if a state or territory Act, award, agreement, individual employment contract or organization policy provides an employee with a more generous emergency leave entitlement than those provided for in the NES, then those provisions will apply. Currently, the NES does not provide for employees to be paid while on eligible emergency service leave. The Australian Government can provide you with information relating to your enquiries for flood relief assistance. Visit www.disasterassist.gov.au STAND DOWN of employees due to recent floods
ADA News Bulletin December 2010
ADA News Bulletin March 2011