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1 Feb 11
After the floods - employment and safety considerations

The flooding throughout Queensland has had a major impact on Queensland businesses. Similar effects are being felt throughout the rest of Australia as rains and floods continue, such that businesses across Australia now face unfortunate challenges in managing the disaster recovery. It will take many businesses a significant amount of time to get back on their feet and sadly, some may not recover at all. This will have a ripple effect upon the customers and clients of those businesses and the people they employ. In this Focus we set out some of the key considerations for businesses after the floods in employment and workplace health and safety matters.

Employment considerations

In the short term, employees may not be able to perform their duties as usual if the business is closed for clean up and repairs or if the employees are tending to personal issues. In managing this businesses should be aware of their options:

Employee leave entitlements*

Employees can be provided access to their accrued annual leave, long service leave, compassionate leave, personal or carer’s leave and community service leave.

Special leave*

If affordable, employees may be provided a period of paid special leave to assist them while recovering from the disaster and to enable businesses to manage idle resources while waiting to regain access to premises etc.

Alternative work locations*

Where usual premises are unavailable, businesses may be able to direct employees to attend an alternative location from which the employee can work, or make arrangements for employees to work from home.

Alternative duties*

Businesses may be able to direct employees to undertake alternative duties if circumstances have prevented them from performing their usual duties.

Stand down without pay*

Businesses that need to temporarily close and that will be unable to usefully employ their employees will, in some circumstances, be able to direct their employees to stand down or not attend for work on an unpaid basis.

* these options are subject to the employee’s contract of employment and any applicable industrial instrument.

Standing down an employee without pay is obviously a last resort, but may be an unfortunate reality for a number of businesses. If a business is considering standing down an employee, it is essential that they ensure they can lawfully do so and consider the practical consequences on employee morale and retention once business operations return to normal. The ability to stand down an employee without pay will primarily be found in the employee’s contract of employment or enterprise agreement. If these instruments are silent on stand downs, the business will need to consider whether it can rely on the stand down provisions in the Fair Work Act 2009 (Cth). Standing down an employee without pay will usually only be available to a business in a very specific set of circumstances and is not a decision to be made lightly. Businesses should make sure they have sought sound advice before directing an employee to stand down.

Insurance may cover some of the costs associated with maintaining payments to employees following the floods. It is important that businesses check the details of their policies in this regard and seek advice where required.

It is possible that some businesses will not recover, or that their recovery will span a significant amount of time. In these circumstances the business may be forced to consider redundancies. In order to do so, businesses will need to comply with their obligations under contracts of employment, industrial instruments, the Fair Work Act 2009 (Cth) and internal policies. Importantly, potential redundancies often require the business to consult with its employees and try and identify alternatives, including redeployment opportunities. Breaches of consultation requirements can create exposure to claims, including the potential for civil penalties. It is therefore critical to ensue the correct processes are followed if redundancies become necessary.

Safety considerations

Workplace health and safety obligations cannot be forgotten in the aftermath of the floods. Remembering the foundations of the workplace health and safety obligations is paramount:

  • identify hazards
  • assess the risks arising from those hazards
  • decide on and implement appropriate measures to eliminate, or if not possible, minimise the risks, and
  • monitor and review the effectiveness of those measures.

Conducting proper risk management will be particularly important where businesses are faced with issues arising from the floods that might include:

  • the stability of buildings and equipment, including plant and vehicles that have been submerged
  • potentially damaged electrical systems and equipment
  • unsafe surfaces
  • contaminated environments, and
  • psychological impacts.

Closing out of these issues may affect when employees return to the business and how they go about their day-to-day duties once they return.

A useful link about flood safety issues can be viewed on the Workplace Health and Safety Queensland website: http://www.deir.qld.gov.au/workplace/subjects/floods/index.htm.

For electrical safety issues, the Queensland Government have established this link: http://www.justice.qld.gov.au/fair-and-safe-work/electrical-safety/floods-electrical-and-workplace-safety.

The Queensland Government have also set up a Workplace Health and Safety Queensland flood clean-up hotline, 1800 177 717. This hotline is currently operating from 7.00am to 7.00pm, seven days a week.

Aside from immediate disaster recovery issues, there is also an opportunity for businesses to review the effectiveness of their disaster recovery plans. Compliance with statutory obligations will require any workplace health and safety issues identified during the flood crisis to be addressed in any revised plans. For example, if workers were required to re-enter flood affected premises during the disaster, consideration must be given to how systems can be changed to avoid the need for this in any similar future scenario.

Disasters often require difficult decisions to be made.  The better informed a business is of its obligations the more smoothly it will recover.  If you require further advice about post-flood employment or workplace health and safety issues, please contact us.

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