Bushfire relief and volunteer entitlements: rights & obligations

WHO SHOULD READ THIS

• All employers, human resource managers and in-house lawyers who manage employee absences, leave approval and leave policies.

WHAT YOU NEED TO KNOW

• An employee may have a statutory right to volunteer as part of the national response to the bushfire relief effort and there are several types of leave available.

Background

The nation and the world have watched as Australia grapples with one of the worst natural disasters the country has ever seen.  As part of the national relief effort, employers and employees should be aware of entitlements available to those volunteering in the relief response.

These entitlements include statutory Community Service Leave, specific community leave under enterprise agreements (EA) and obligations regarding the Australian Defence Force Reserves subject to the mandatory call out.

Community Service Leave

Where an employee joins the bushfire relief effort, there is an entitlement under the National Employment Standards (NES) for unpaid community service leave for a voluntary emergency management activity (this includes working with a recognised emergency management body, such as firefighting, civil defence or a rescue body).  The right to access this leave applies to all employees covered by the national workplace relations system, regardless of any award, agreement or contract. 

An employee is entitled to take community service leave:

• while they are engaged in the activity;
• for reasonable travel; and
• for rest time. 

There is no limitation on the amount of community service leave an employee can take, so long as it is reasonable.  There are some notice and evidence requirements.  Importantly, under the Fair Work Act 2009 (Cth) (FW Act) an employer cannot terminate, or take adverse action against, an employee for engaging in a voluntary emergency management activity where their absence is reasonable.

Of course, employers can also elect to continue to pay their employees while they are accessing community service leave.

Enterprise Agreements

Employees can also rely on paid volunteer and community leave that may be available to them under their relevant EA.  Whether or not this is an entitlement will depend on the terms of any applicable EA.   

Defence Call Out for Reservists

The Governor-General initiated a Defence Call Out on 4 January 2020 to support national disaster relief efforts under the Defence Act 1903 (Cth).  For employers, the Call Out places additional obligations on workplaces that have Reservist employees in their workforce.  This means that all employers are required by law to release ‘called out’ employee Reservists to undertake all types of Defence services. 

In addition to workplace rights and entitlements under the FW Act, Reservists have additional workplace protections under the Defence Reserve Service (Protection) Act 2001 (Cth).  Reservists are protected in their civilian workplace from discrimination, disadvantage or dismissal for reasons associated with their service. 

While there is no legal obligation for employers to pay employees while they are absent on Defence service, special arrangements can be agreed.  Employers also cannot make employee Reservists take their annual leave or long service leave for absence on Defence service, but the employee may voluntarily elect to do so by mutual agreement with their employer.

Employers of Reservists absent due to the Call Out are, in some circumstances, also entitled to receive payments from the Commonwealth’s Employer Support Payment Scheme to compensate a business for the loss of an employee during their period of service. 

Government Response to entitlements for volunteers

As the nation responds to the bushfire crisis, the government are providing additional leave entitlements for employees who volunteer in emergency services. This includes:

• for Australian Public Service employees, they will have their paid volunteer leave allowance boosted to 20 working days leave paid, with additional leave to be provided where required; and
• NSW Rural Fire Service volunteers who are self-employed or work for small and medium businesses, will be able to apply for payments up to $300 per day and a total of $6000 per person to provide for lost income.

In exceptional circumstances like these, employers and employees can always agree on special arrangements to support the relief effort.

For further information, please get in touch with our Employment Relations and Safety team below.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It 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.