Workforce options following 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.
PALM Scheme Approved Employer Guidelines v2.1
Employers engaging workers under the PALM Scheme must also heed the requirements set out by section 3.7.14 of the PALM Scheme Approved Employer Guideline (Excerpt below).
Standdowns
3.7.14. You may have the right to standdown Workers under the Fair Work Act or relevant Fair Work Instrument, as applicable, if the Workers cannot usefully be employed for reasons outside of Your control, such as equipment breakdown natural disasters, severe or inclement weather and industrial action. Before standing down Workers, you must ensure compliance with the Fair Work Act or relevant Fair Work Instrument, as applicable, and these Guidelines.
3.7.15. If a standdown reduces the available hours of work for Workers to fewer than 20 in a week, Approved Employers must:
(i) ensure a minimum net pay guarantee for Workers after tax and deductions of $200 a week as per section 5.1.7; and
(ii) cover the costs of Worker’s accommodation and transport for any week in which Approved Employers offer less than 20 hours as per section 3.7.10.
3.7.16. If a standdown does not reduce available hours of work for Workers to fewer than 20 in a week, no further action is required.
3.7.17. Refer to the FWO website25 for further information on shutdowns and standdowns.
Leave and minimum hours
3.7.18. You must not require a Worker to use NES leave entitlements26, either paid or unpaid, where You have directed the Worker to standdown.
3.7.19. Where Workers are paid standard hours for the period of the standdown, this will count towards the minimum hour requirements specified in section 3.7.
3.7.20. For the avoidance of doubt, the requirement at 3.7.18 does not apply in the situation where, under the applicable Fair Work Instrument, you are able to direct a Worker to take paid or unpaid leave during a shutdown.
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
This is a particularly relevant consideration for employees under the PALM scheme where there is a requirement to pay the minimum net pay guarantee and accommodation and transport if the worker is offered fewer than 20 hours in a week. The key here is that the hours must be available and offered to the employee. Given they are being paid for regardless, employers should consider options for alternate types of work and locations that they may be able to safely offer the work to employees before simply standing the employees down.
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.
4. Redundancy
This option is ideally the last resort for employers. Where an employer does not have any work available for the foreseeable future, an employer may have no other option but to make a position or positions redundant.
There are specific steps required to implement genuine redundancies. Growers considering this option should contact the QFVG Workplace Support line. A redundancy kit available for purchase.
A few key points on redundancies:
As part of redundancy considerations, the employer will be required to genuinely consider redeployment to another part of the business or to another farm (where the option is available) and upon termination give those affected employees the appropriate notice or payment in lieu.
Redundance payments will be required where employees are:
Over 12 months of service;
Engaged as a permanent employee;
Employed by an employer with >15 permanent employees (including those employed by related entities).
There are certain circumstance in which redundancy payments may be reduced for example, where the employer is successful in finding alternative employment for an employee; or where the employer applies to Fair Work for relief.
Redundancy situations require consultation with the employee(s) impacted, even when there is no entitlement to redundancy payments.
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.
If you have any queries about this information, please contact QFVG Workplace Relations team on 07 3620 3844 or email wrteam@qfvg.com.au
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