Navigating staffing and logistical recovery

By Luis Izzo, Managing Director and Victor Song, Senior Associate from Australian Business Lawyers & Advisors

1. Managing staff during a natural disaster

• If the business is not able to open due to flooding, there are stand down procedures under the Fair Work Act which businesses can utilise.
• Section 524 of the Fair Work Act 2009 (Cth) allows employers to stand down employees without pay if they cannot be usefully employed due to a stoppage of work outside the employer’s control (e.g., natural disasters). Cyclone Alfred is considered to be one of these situations outside the employer’s control.
• During the stand down period, the employer is not obligated to pay its employees, unless an award or an agreement provides otherwise.
• It is important that the employer must be able to demonstrate that:

(a)    there is a stoppage of work;

(b)    the stoppage of is directly linked to/as a result of the natural disaster/cyclone; and

(c)    the employees cannot be usefully employed.

• This means that the employer must consider other alternatives before it can lawfully stand down its employees.  This will include a consideration of whether there is an ability for employees to work remotely and/or whether there are any available alternative duties within the employees’ skill level and expertise which can be performed.
• Having regard to the above, if the employer still needs to stand down its employees, the employer should provide written notice to affected employees, which sets out:

(a)    the reason for the stand down (e.g., workplace closure due to Cyclone Alfred);

(b)    the expected duration (if known); 

(c)    the entitlements (such as annual leave) can be accessed during this period; and

(d)    the employee’s right to request to use annual leave or other paid entitlements.

2. Work from home provisions

• If working from home is practicable, employers must confirm if the employee’s home environment is safe to do so. This includes (but is not limited to) checking that essential safety measures are in place, such as safe entry and exit points, no exposed power lines, and the absence of any potential hazards.
• Employers are reminded that they still have a duty of care to ensure the health and safety of employees working from home. This includes providing employees with advice, equipment or risk assessment checklists (where appropriate).
• SafeWork NSW has published a helpful WFH checklist that employers should follow, outlining key safety considerations to manage while employees work from home.  The check list can be found here.

3. Paid leave and payroll flexibility

• If employees are unable to attend work, the employer is not required to pay them. However, before making any decision, the employer should first explore options such as:  

(a)    Special leave (if available);  

(b)    Annual leave; and  

(c)    WFH arrangements.

• Where employees are stood down without pay (see stand down discussion above), employees can request to use their annual leave to continue receiving pay during the stand down period.  Employers cannot unreasonably refuse the request.
• Employers may also wish to consider temporary changes such as reduced hours, job-sharing or leave without pay (subject to employee agreement).

4. Temporary role changes

• If different duties are required to be performed, and there is no contract and/or award provision to the contrary, the employer can issue a lawful and reasonable direction to perform those tasks. This might be important to help the business recover from any flooding or other adverse consequences from the cyclone.
• However, the employer must ensure that the temporary role can be safely performed and is not inconsistent with any contractual, award and/or agreement obligations.

5. Managing return to work risks and safety equipment requirements

• Employers must conduct risk assessments to ensure the workplace is safe before returning to work.  This might include structural safety checks, hazard removal and restocking emergency equipment.
• Discuss safety measures and consult with employees and ensure that any return to work plans are consistent with government advice/directives.

6. Other considerations

• Employers should continue consistent and regular communication during this period.
• Offer EAP/mental health support for affected employees.