Australia is currently in the midst of battling a tragic and unprecedented bushfire season. At the time of publication, there have been 25 deaths, a number of people still unaccounted for, over 1600 homes destroyed, and hundreds of other homes damaged by the fires. A number of major capital cities have also been blanketed with hazardous smoke for weeks, with the Federal Government telling a number of Canberra based employees to stay home on 6 January 2020.
With at least eight weeks of summer left, a number of fires still burning across the country, people and communities stranded and/or without homes, infrastructure destroyed and hazardous smoke still flowing around the country, it is timely to summarise the obligations of businesses with respect to their employees and workers during both natural disasters, and other unforeseen circumstances.
Community service leave
There are an estimated 130,000 Volunteer Fire Fighters throughout Australia, many of whom have now been fighting fires for months. A number of those volunteers are also employees, who may need to take time off their regular work in order to fight the fires and help deal with the aftermath.
An employee who is a member of a recognised emergency management body, such as the NSW Rural Fire Service or the Victorian Country Fire Authority, is entitled to unpaid community service leave whilst fighting natural disasters, including reasonable travel and rest time. Employees are required to notify their employers of the need to take such leave as soon as is practicable, which may be after the leave/need to engage in the volunteer activity has commenced.
Employees are also required to advise of the time-frame in which they will (or expect to) be absent from the workplace.
It is important to note that there is no limit on the amount of unpaid community service leave which may be taken by an employee. With this in mind, employers can request evidence confirming that the employee was engaged by a recognised emergency management body to deal with the natural disaster, in order for the employee to be allowed access to this leave.
Employee health and wellbeing
Since 1 January 2020, Canberra has continued to suffer hazardous levels of air quality, with air quality index readings showing that on certain days, the city's air was the most polluted in the world. In response to these findings, the Federal Government closed a number of its workplaces on 6 January 2020.
Record low air quality was also measured in Sydney throughout December 2019, and organisers of the Australian Open are now being questioned by a number of professional tennis players over contingency plans, should the air quality in Melbourne deteriorate.
Hazardous air quality can have disastrous effects on an individual's health, particularly on those with respiratory conditions. Businesses have a duty of care to ensure that their workplace is a safe environment for their workers. Accordingly, those businesses which require workers to work outside in hazardous air quality need to undertake a risk assessment before directing employees to work outside in hazardous air quality.
SafeWork NSW recently published a reminder of the need for those working outside to have access to respiratory protection, such as a P2 mask, whilst working outside in bushfire smoke. Holman Webb notes that access to the recommended P2 masks is now in short supply, with reports indicating that ACT Health has advised Chemists to only sell the masks to those who are sensitive to smoke.
On 4 January, Australia's Minister for Health, The Hon Greg Hunt MP, published a media release announcing that the Australian Government will provide Victoria with "...450,000 [P2] face masks from the National Medical Stockpile to assist frontline workers and those at risk in communities affected by the bushfires".
Additionally, businesses should be flexible and accommodating with employees who suffer from asthma or other respiratory conditions wherever possible. This may include allowing employees to work from home, or other suitable locations.
For workers emotionally affected by the fires, providing access to employee assistance programs (EAPs) may be the most effective approach. EAPs are designed to support the psychological, mental and emotional wellbeing of employees, and are active in helping organisations prevent and cope with trauma, as well as other emergency response situations.
The commencement of a new year is also an appropriate time for businesses to revisit their emergency management plans, ensuring that they are still appropriate and effective. Businesses should train employees on these emergency management plans in order to ensure that their workers both understand, and are able to comply with the requirements of such plans.
Standing down employees
Businesses may consider standing employees down in circumstances where:
- Working conditions become unsafe and there is no ability to have a business open;
- There is no way to access the workplace; or where
- The business has succumbed to the fires (or other natural disasters).
A stand down can occur where there is a stoppage of work caused by factors beyond the employer's control, and where employees cannot be usefully employed.
Should a business have no choice but to temporarily close down as a direct consequence of the fires having either destroyed or blocked access to the workplace, the business may be able to stand employees down, which pursuant to the Fair Work Act 2009 (Cth) would also remove the obligation to pay those employees for that period of the stand down.
Notwithstanding the removal of the obligation to pay those employees, businesses may grant those employees ex-gratia leave so they can continue to be paid and/or grant an employee's request to instead take annual leave for the period of the stand down.
Accessing leave entitlements
Where a natural disaster affects an employee's household or immediate family member, they may be entitled to paid carer's leave. This type of leave may include (but is not limited to) situations including:
- Where a school is closed due to impending fire risks, and an employee needs to care for their child;
- Where an immediate family member of an employee has lost their home and the employee needs leave to provide care or support to that family member; or
- Where a member of the employee's household is a volunteer firefighter and has suffered an injury or illness requiring care or support from the employee.
The extent of a business' obligations to its workers may differ depending on the particular circumstances. As such, Holman Webb encourages readers to contact us for individually tailored advice relating to your particular situation and obligations owed to workers.
Businesses affected by the fires should also consult any insurance policies held, which may provide cover for business interruptions.
Holman Webb hopes that there is fire extinguishing rain across all fire grounds in the near future, and that all emergency services personnel are granted a reprieve from the life saving work they have been engaged in for months.
By Alicia Mataere, Lee Pike and Ellie Jongma