Employer obligations after a natural disaster
For growers impacted by the recent weather events it is important to understand how to best manage your skilled workforce and not lose good employees.
What are your options?
The first step is to check the agreement or legislation that applies to your employees. If you have any form of Collective Agreement in place, check this for terms relating to stand-downs. Similarly, if you have Contracts of Employment or Policies in place, check for any relevant terms.
The below information is based on the National Employment Standards and the Horticulture Award 2010.
1. Standing down employees (a temporary measure)
Where an employer is unable to provide work, for a reason which it cannot reasonably be held responsible, the Fair Work Act Sect 524 allows an employer to stand down employees without pay until work becomes available.
Natural disasters, as you can imagine, typically fit the definition of an event for which the employer cannot reasonably be held responsible.
So if because of the event, the employer is unable to usefully employ its employees, they may be entitled to stand down the employee without pay.
In this situation the employer should meet with the affected employees as soon as possible to inform them of the decision and the reasons behind it.
This should be followed with written notification of the start date of the stand down, whether the employee will be paid, the effect on other employment entitlements and the date it is expected to end.
This period of contact is good time to discuss alternative options available to the employees such as paid leave (where eligible employees have accrued such entitlements) or alternative employment with a farm or business nearby until work becomes available.
Please see below for the relevant provisions drawn out of the Fair Work Act.
FAIR WORK ACT 2009 - SECT 524
Employer may stand down employees in certain circumstances
(1) An employer may, under this subsection, stand down an employee during a period in which the employee cannot usefully be employed because of one of the following circumstances:
(a) industrial action (other than industrial action organised or engaged in by the employer);
(b) a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown;
(c) a stoppage of work for any cause for which the employer cannot reasonably be held responsible.
(2) However, an employer may not stand down an employee under subsection (1) during a period in which the employee cannot usefully be employed because of a circumstance referred to in that subsection if:
(a) an enterprise agreement, or a contract of employment, applies to the employer and the employee; and
(b) the agreement or contract provides for the employer to stand down the employee during that period if the employee cannot usefully be employed during that period because of that circumstance.
Note 1: If an employer may not stand down an employee under subsection (1), the employer may be able to stand down the employee in accordance with the enterprise agreement or the contract of employment.
Note 2: An enterprise agreement or a contract of employment may also include terms that impose additional requirements that an employer must meet before standing down an employee (for example requirements relating to consultation or notice).
(3) If an employer stands down an employee during a period under subsection (1), the employer is not required to make payments to the employee for that period.
2. Employee Leave
Employers should consider what leave options are available to permanent employees who have leave accrued. This might be annual leave or long service leave or, in certain circumstances, personal leave.
Annual or long service can be taken by agreement as long as the employee has an entitlement to that leave.
Personal leave may be used if the employee’s circumstances are such that they would be entitled to it (for example, if they are ill or injured, or a member of their immediately family or household is ill or injured and requires care, or if a child in their care has a sudden school/childcare closure due to the natural disaster).
3. Redeployment and alternate working arrangements
While one location might be impacted, others may not. Employers should consider whether employees can be given work at another location – either owned by the employer, or as a secondment opportunity with another employer. It will be important to ensure appropriate paperwork is in place (a simple letter can suffice for short periods) and that any Award or Agreement conditions are adhered to.
For some positions and duties, there may also be options to work from home, and this should be considered where possible.
We understand the challenges being faced by our members at this time and hope that this assists in navigating what we know is a difficult situation and often, difficult choices.
QFVG has been supporting horticultural growers with information and advice on workplace relations, human resource management and workplace health and safety for over 20 years. Today, we partner with consultants, and QFVG Partner Who Cares, Focus HR to deliver tailored and expert advice to our members.
Grower Members enjoy a range of benefits including:
Two hours complimentary workplace relations advice per year.
Discounts on all products in the Workplace Relations Shop and full range of services provided by Focus HR.
News & alerts on major industrial relations development delivered to your inbox.
Not a member? Join us today to unlock exclusive member benefits.
