Natural Disasters – Rights and Responsibilities of Employers and Employees

Posted By Chris Delaney / Uncategorised / No Comments

Australia suffers many extreme weather patterns, some are declared natural disasters and many cause substantial and prolonged disruption to businesses and their workers.

Problems range from minor inconvenience to complete shutdown, with often no opportunity of returning to normal business in the short term. It can be a time of great financial uncertainty and worry for affected business operators and their workers.

Employers worry about the cost, while workers are concerned about their financial security and all too often the direct effect on their homes and families.

Just when it seems that the storm, fire or flood is over in one place, another may face the collateral damage down stream or wherever the weather moves to next.

Employers, need to consider their obligations to workers who, through no fault of the employer:

  • have no work to do because the business premises are damaged or closed;
  • can’t get to work because of flooding, disruption to transport etc.;
  • are unable to come to work because of their own personal circumstances;
  • are engaged in emergency service work or the recovery effort;

Here we explore the most often asked questions from clients and how Australian workplace law deals with these problems:

Q1. My business operations are badly affected and I have no work for some or all of my employees. Do I have to pay them when I can’t provide work for reasons beyond my control?

Usually yes – there are some exceptions, some awards will have stand down provisions for this and/or similar situations. Talk to a professional. You may need to make an application to the Fair Work Commission for stand down orders.

Q2. There is a lot of cleaning up to do at my business premises before we can return to normal work. Can I ask employees to help with that?

Yes. However, before asking employees to participate in clean-up work, you must be satisfied that they are both competent to do so, and are physically capable of doing the work. If necessary, you should enquire about any physical limitations employees have before allocating work to them of a kind they would not usually perform. Some tasks might also involve specific safety requirements or specific training or safety induction – for example, in the safe use of equipment or cleaning substances, or preventing biological contamination from dirty water. Remember that your workplace health and safety obligations will continue to apply, and that significant criminal penalties can result from breaches of health and safety laws.

Q3. Because of the flooding, I can’t provide an employee with their usual work, but I have other work they can do. Can I ask or direct them to do that work instead?

Generally yes, provided that the employee is capable (by experience, training or qualification) of doing the work and it presents no safety risks. See the notes to question 2.

Q4. Can I direct an employee to work at a location other than their normal place of work if, because of flooding, it can’t be used?

Generally, yes. You should, however, check any applicable award/agreement to see if it provides otherwise. If it does, your ability to direct an employee to work at another location will be limited by the terms of the instrument.

Depending on the alternative work location, some employees may either not be able access the location (or do so easily) or may spend significantly longer travelling to work, therefore incurring additional costs or attracting additional pay entitlements. In these circumstances, an employee may be able to refuse to work from the other location or may be entitled to reimbursement of additional travel costs incurred and/or payment for additional travel time.

Q5. Can I allow or require an employee to work from their home while my business premises are flood affected?

Generally yes, although depending on a range of variables, some safety issues might arise over which you have no control. Given the strict liabilities imposed by workplace health and safety laws, this could expose you to liabilities about which you know very little or nothing.

Q6. Can I force an employee to take paid annual or personal leave if I can’t usefully employ them for a period for reasons beyond my control?

Generally speaking, you can direct an employee to take a period of annual leave. You cannot, in these circumstances, direct an employee to take personal or carer’s leave.

You can direct an employee to take a period of annual leave if the direction is reasonable. A direction to do so may be reasonable if your business is being shut down for a period of time. While a common example is a Christmas shut down period, business closure due to a natural disaster is also likely to be reasonable.

However, you should carefully review the provisions of any applicable award or enterprise agreement before directing employees to take annual leave, as it might contain more detailed provisions in relation to a direction to take annual leave. Many awards require employers to give employees a specified period of notice (such as four weeks) before they can be directed to take annual leave. In these cases, the required notice periods would usually negate the effectiveness of forcing an employee to take annual leave to cover a forced absence from work.

Q7. Do I have to make any adjustments to the leave entitlements of employees who were on paid leave of any kind during flood interruptions to my business?

With some exceptions, the answer is generally no. However, an employee cannot be on annual leave if they are on any other form of leave (except parental leave) at the same time. For example, an employee on annual leave who becomes, during or as a result of a flood event, entitled to take paid sick or carer’s leave, may apply to take sick or carer’s leave for the relevant period and ask that you credit their annual leave entitlement accordingly.

Similarly, an employee on annual leave called up as a member of the SES or other “recognised emergency management body” to assist in the management of a natural disaster would be eligible to take community service leave. An employee in this position might request to have their annual leave balance adjusted for the period they were on community service leave, although community service leave is generally unpaid. Community service leave is discussed further in question 14 below.

Q8. While I restore business operations, I have nothing else for some or all of my employees to do. Can I “suspend” their employment without pay for so long as I am unable to provide work? If so, how do I go about that?

Generally, yes.

The Fair Work Act allows an employer to stand down (or “suspend”) an employee without pay in specified circumstances. This includes where an employer has had to close its workplace for a reason for which the employer could not reasonably be held responsible. Recent (and ongoing) flood interruption to a workplace is likely to meet this description.

If you have to suspend an employee without pay, you should confer with them to inform them of your decision and the reasons behind it. This might also be a time to discuss other options, including those outlined above relating to alternative work arrangements or use of available leave entitlements. To the extent that it is possible, you should give affected employees an estimate of the period for which their employment may be suspended. You should keep in regular contact with your employees during this period to keep them up-to-date with your business recovery process.

Of course, some employees suspended from their employment on an unpaid basis in these situations may choose to resign so as to obtain other paid work. They are entitled to do so.

Q9. My business has been so badly affected that I will not be re-opening at all or won’t be able to operate for some time. Can I dismiss my employees on the grounds that their services are not going to be required for the foreseeable future? What are the implications of that?

Yes, subject to compliance with applicable industrial requirements relating to redundancy situations, of which this is an example. In many cases employers will have obligations to consult affected workers; to genuinely consider redeployment opportunities; and, upon termination, to give up to five weeks’ notice or pay in lieu, and, for employers with 15 employees or more, to pay up to 16 weeks severance or redundancy pay.

Q10. An employee’s home was badly affected by the floods. Are they entitled to paid or unpaid leave to sort out the personal problems that caused?

Generally speaking, yes. Paid carer’s leave is available where an employee is required to provide care or support for members of their immediate family or household because of an unexpected emergency. A significant flooding event will qualify an employee to take carer’s leave to deal with the aftermath and to support their immediate family or household. Carer’s leave is limited, and comes out of the personal leave entitlement.

An employee who has accrued annual leave available may apply to take it in these circumstances (with your agreement). You can also agree to allow an employee to take annual leave in advance.

Long serving employees (with more than 10 years continuous service) who are entitled to take paid long service leave may apply (with your agreement) to take such leave in these circumstances. Note that long serving casual employees in Queensland are also usually entitled to paid long service leave.

If an employee was injured or falls ill during the floods or clean-up process, they may also be entitled to take paid sick leave (subject to their leave balance and the provision of any medical certificates that may be required by their employer). Sick leave, like carer’s leave, also comes out of the limited personal leave entitlement.

Where a member of an employee’s immediate family or household sustains a life threatening injury or illness or dies, the employee is entitled to two days’ paid compassionate leave (unless they are casual employees, in which case the leave is unpaid). Compassionate leave is separate from the personal leave entitlement, available to be taken as sick or carer’s leave.

Where an employee is not entitled to any of the above paid leave, you can nevertheless allow the employee to take paid or unpaid “special” leave in order to address their personal circumstances.

Q11. An employee can’t physically get to work because flooding has prevented their access. Do I have to keep paying them while this continues?

Generally not, although you could allow them to access any accrued but untaken annual or long service leave entitlements, or to take paid annual leave in advance, provided you and they agree to that.

Q12. An employee is not directly affected by the floods, but has taken time off to assist family members who are directly affected. What is their entitlement to do that?

An employee may be entitled to take paid or unpaid carer’s leave in this circumstance. Carer’s leave is available where an employee is required to provide care or support for members of their immediate family or household because of an unexpected emergency. Natural disasters will qualify.

Where an employee exhausts their entitlement to paid carer’s leave, they may be entitled to take further periods of unpaid carer’s leave.

Q13. An employee was not directly affected by the floods but wants to take time off work to perform volunteer community work. Do I have to allow that?

Generally not, but you can allow it on a paid or unpaid basis if you wish to do so.

Q14. An employee is a member of the State Emergency Service and was called to perform emergency service work when the floodwaters started to rise. Are they entitled to time off for that and, if so, are they entitled to paid leave?

Employees who are members of the SES, or another “recognised emergency management body” (as defined in the Fair Work Act) are entitled to take community service leave for the time they were engaged in the emergency work. This leave is generally unpaid, although some employers treat it (or part of it) as paid leave, either because they choose to do so or have agreed to do it.

The period for which an employee can be absent on community service leave is not specified in the Fair Work Act but must be reasonable considering:

  • the time the employee is engaged in the emergency work;
  • reasonable travelling time associated with the work; and
  • reasonable rest time after performing such work.

To be considered community service leave, the employee must, as soon as practicable, notify you of their absence and advise you of the expected period of their absence. In situations of natural disaster advising the duration of the absence may be problematic – common sense and patience will be important.

Disclaimer

The information provided here is general information applicable to National System Employers to whom the Fair Work Act 2009 applies (and not, for example, public servants and local authorities in most States and Territories of Australia).

In some cases, the rights and obligations of the parties will vary according to the industrial arrangements applicable to them under an award, collective agreement, continuing statutory individual agreement, common law employment contract, workplace policy, or a combination of these. For advice specific to your situation, you should consult a specialised industrial and employment law advisor.

Different considerations will also apply to contractors. Again, in situations involving contracting arrangements, we recommend that you seek specialist advice.

For more information about your rights and obligations when business is disrupted by a natural disaster, please contact the Workplace Relations Specialists or email: admin@workplacerelationsspecialists.com.au

 

Read More

Sexual Harassment in 2019

Posted By Chris Delaney / Uncategorised / No Comments

You don’t have to be a Hollywood big shot to be accused of sexual assault and harassment.
Around the world and here in Australia allegations of sexual assault and harassment have touched all industries and workplaces.
A recent survey conducted by the Australian Human Rights Commission found that 1 in 4 women surveyed had been sexually harassed at work in the past five years. Many of the recent allegations go back decades.

What is sexual harassment?
Sexual harassment is unwelcome sexual behaviour, which makes a reasonable person feel offended, humiliated or intimidated. It will be considered to be unwelcome if, in the complainant’s mind, it is unwelcome. The determination as to whether it is sexual will be proven is based on what a reasonable person would think.
A one-off incident can constitute unwelcome conduct; the conduct does not need to be a continuous or a repeated course of conduct to be considered unwelcome.
Unfair dismissal laws in Australia, and decisions of industrial tribunals in matters of alleged sexual harassment indicate that the facts must be clear and the evidence reliable for a dismissal to be upheld in the Fair Work Commission. Equally, tribunals have been generous in awarding damages to victims where it has been proven that the employer failed to protect them from sexual harassment
Each situation will be considered on the circumstances. A complaint of sexual harassment will not be dismissed because the complainant did not tell the alleged harasser to stop the unwelcome conduct. The court will consider a number of factors that may affect an individual’s ability to communicate the unwelcome nature of the conduct, including youth and inexperience, fear of reprisals and the nature of the power relationship between the two parties.
Conduct likely to be considered sexual in nature includes:
• touching, hugging or kissing;
• inappropriate staring or leering;
• insults or taunts of a sexual nature;
• repeated or inappropriate invitations to go out on dates;
• requests for sexual favours;
• repeated or inappropriate advances on email or social networking websites;
• intrusive questions about a person’s private life or physical appearance;
• sexual gestures, indecent exposure or inappropriate display of the body;
• sexually suggestive comments or jokes;
• sexually explicit pictures, posters, gifts, emails or text messages;
• requests or pressure for sex or other sexual acts;
• inappropriate physical contact; and/or
• stalking, actual or attempted rape or sexual assault.
Workplaces may be hostile. A sexually hostile work environment is one in which one sex is made to feel uncomfortable or excluded by the workplace environment. In such a workplace behaviours include the display of obscene or pornographic materials, crude conversation and offensive jokes. Such workplaces can be a particular problem for women working in male-dominated workplaces.

Every employer has a duty to take all reasonable (active) steps to prevent and deal with sexual harassment in the workplace.

Reasonable steps will vary depending upon the size, structure and resources of a particular workplace but should include:
• creating a healthy and safe work environment based on respect;
• developing and implementing a sexual harassment policy;
• Establishing a complaints/grievance procedure; and
• providing or facilitating education and training on sexual harassment.
POLICIES
Sexual harassment policies can also vary between workplaces. However, a sound sexual harassment policy should include at least:
• a concise definition of what does and does not constitute sexual harassment;
• an outline the internal procedures for making a complaint, carrying out an investigation and implementing disciplinary procedures;
• a clear statement that sexual harassment is unlawful behaviour and may be considered a criminal offence by a court;
• a provision for training of all staff and particularly those responsible for monitoring workplace behaviour;
• the options available for dealing with a sexual harassment complaint including the provision of counselling and support services; and
• identification of the potential consequences for breach of the policy including dismissal and/or criminal proceedings.
TRAINING
Given the heightened dialogue surrounding this issue it is important that employers place greater emphasis on ensuring employees are trained on appropriate workplace behaviour and that there are policies to prevent harassment occurring.
Training should ensure that employees clearly understand what sexual harassment is and is not, so as to reduce misconceived complaints.
A GRIEVANCE/COMPLAINTS PROCEDURE IS ESSENTAL
All employers must implement an efficient complaints procedure accessible to employees. It should:
• clearly state that the business has a strong stance on sexual harassment;
• be aimed at ensuring positive workplace relationships;
• deal with complaints consistently and judiciously;
• mitigate any liability under discrimination laws;
• reduce any adverse effect on those harassed;
• minimise the risk of a successful unfair dismissal claim.
DEALING WITH ALLEGATIONS OF SEXUAL HARASSMENT
Employers must provide every employee accused of sexual harassment with a “fair go”. They should be advised what they are accused of and that no acts of retaliation or unethical actions will be tolerated.

In some cases it may be appropriate to stand down the employee with pay pending a thorough investigation. Assure the employee that the matter will be dealt with quickly and ask the person to be patient while you conduct a thorough investigation.
Avoid making any assumptions about the outcome of the guilt or innocence of those accused.

For more information on how to deal with allegations of sexual harassment in the workplace, development of policies and procedures and conducting workplace investigations contact us at .

 

Read More

Can an employer insist that applicants undergo a pre-employment medical assessment?

Posted By Chris Delaney / Uncategorised / No Comments

Under federal and state WorkSafe laws an employer has a duty of care to protect the health and safety and welfare of their employees. This is particularly important when the employee is involved in physical activities requiring a high level of fitness.
A pre-employment medical can help mitigate risks in the workplace. It may discover a pre-existing illness or injury that may be exacerbated by the activities the employee is expected to perform as an inherent requirement of the job.
“Inherent” requirements are the essential activities of the job: the core duties that must be carried out in order to fulfil the purpose of a position.
Can you require a candidate undergo an assessment?
If you want to compel an applicant to undergo a pre-employment medical as a requirement of getting the job you may be required to prove that the medical evidence is necessary to determine whether the applicant can perform the inherent requirements of their role, with or without reasonable adjustments.
In those circumstances anti-discrimination laws allow employers to refuse to employ applicants who do not submit to a medical examination.
Some candidates may be reluctant to agree to a pre-employment medical. Before deciding that the medical is essential, ensure that the medical is necessary and will not be a breach of anti-discrimination laws.
Employers should:
• Scope out the job and identify what are the inherent requirements that may be identified in a medical assessment;
• Where practical have the medical practitioner visit the workplace to observe the work first hand. Also provide a position description and a detailed list of tasks to be performed on the job.
• Only assess those things that directly relate to the inherent requirements of the job;
• Discuss and explain clearly to candidates and ask (both on the application for employment form and at the interview) if they are aware of any pre-existing injury or illness that might affect the performance of the inherent duties; and
• advise the candidate of the test outcome and ensure strict confidentiality.

Read More