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Queensland businesses have been subjected to various challenges in the wake of ex tropical cyclone Oswald, including flooding, loss of power and interrupted water supply. Managing the disaster recovery process will be critical and some businesses may struggle to recover. In this Focus, we set out some of the key employment and work health and safety considerations.
Where employees are unable to perform their duties, various options may be considered.
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.
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. The practical consequences on employee morale and retention once business operations return to normal, should also be considered.
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 ensure the correct processes are followed if redundancies become necessary.
Safety considerationsWork health and safety obligations remain important, noting the general obligation to ensure the safety of workers and others who may be affected by a business or undertaking, including during any clean up process.
Relevant hazards to consider would 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.
To assist business, Workplace Health and Safety Queensland have released a guide titled ‘Workplace health and safety laws when cleaning after floods and storms’, which can be found at this link http://www.deir.qld.gov.au/workplace/subjects/floods/index.htm.
For electrical safety issues, the following link includes a section dealing with electrical safety for storms and floods clean up and recovery: http://www.justice.qld.gov.au/fair-and-safe-work/electrical-safety/floods-electrical-and-workplace-safety.
Workplace Health and Safety Queensland also maintain a freecall number for inquiries about health and safety issues, 1800 177 717. This number operates from 7.00am to 7.00pm, seven days a week.
Aside from immediate disaster recovery issues, the effectiveness of disaster recovery plans should also be reviewed. Any work health and safety issues identified should be addressed in any revised plans.
The responses to natural disasters often require difficult decisions to be made. The better informed that businesses are about their obligations, the better they will be able to manage risks.
If you require further advice about employment or work health and safety issues during the recovery phase, please contact our Workplace Relations and Safety Group for expert assistance.
*these options are subject to the employee’s contract of employment and any applicable industrial instrument.
Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.