Legal development

Queensland and New South Wales floods Employment issues

03 March 2022

What you need to know

Recent flooding across South East Queensland and New South Wales is affecting many employers and employees.
Employers are responding to the various challenges posed by these events compassionately and with the highest regard to safety.

What you need to do

Consider how you can support employees, such as through employee assistance programs, advance leave entitlements, working from home and managing health and safety risks.
For more seriously affected businesses, consider how to manage your business if you are affected by flooding – including considering standing down employees without pay, alternative work, redundancy and business recovery in serious cases of impact.

How employers can support employees

In the wake of heavy rain fall and flooding experienced across South East Queensland and New South Wales over the past week, employers are putting in place processes to provide support to their employees, and to balance business needs with employees' personal needs.

Ways in which employers can support their employees include:

providing paid leave entitlements, such as annual leave or long service leave with an abridged notice period;
providing employees with access to compassionate leave or personal or carers' leave and community service leave (eg for those volunteering with the SES and similar services);
providing discretionary paid special leave (or make-up pay) for those who are impacted or volunteering with emergency services;
assigning employees to an alternative safe work location not affected by the emergency, for example, temporary premises or the employee's home;
facilitating working from home arrangements;
facilitating alternative working hours (such as flexible working hours or reduced working hours);
providing alternative work;
providing cash advances;
providing employee counselling; and
providing child / elder care support.

The terms of any such arrangements should comply with the requirements in any industrial instrument or contract.

As events permit, arrangements that are not covered by current terms and conditions or policies should be documented. Similarly, as events permit, arrangements that vary current terms and conditions (so far as this can occur) should also be documented.

Employee assistance programs

An Employee Assistance Program offers work based assistance for the emotional and psychological wellbeing of employees (and often, immediate family members).

EAPs can also include a trauma management program. Involvement in a traumatic event can debilitate employees and make it difficult for them to perform their duties. An EAP or trauma management program can provide consultation with management, advice on strategies to move forward and individual or group counselling. Participation in these programs is confidential.

Employers do not necessarily have an obligation to offer an EAP or other assistance. Employers must provide a safe place of work, and offering counselling and other services through an EAP can be an element in providing that safe place of work. Employers should also review their current obligations to employees under industrial instruments, contracts of employment, and policies.

Employers with an EAP in place should ensure employees are aware of and encouraged to access the confidential services offered.

Flexible working arrangements

During and after the flood period, employers may consider consenting to workers working from home (or a suitable alternate location). In agreeing to allow employees to work remotely, employers should:

assess whether the employee's work can be completed in the remote environment;
communicate to workers the safety and other requirements of working remotely;
ensure that the employee's proposed working environment is safe. An employer's obligation to ensure the health and safety of its employees applies;
equally to employees working from home (or another remote location). Workers' compensation may apply to any injury an employee suffers while working at home;
ensure that appropriate arrangements are in place to maintain business confidentiality;
consider insurance arrangements (for example, public liability insurance coverage);
establish communication methods with employees working remotely;
consider the reimbursement of costs incurred (such as electricity); and
consider formalising or preparing a working from home/remote working policy if they do not have one in place already.

Leave entitlements

Employees have leave entitlements under the National Employment Standards and in any applicable industrial instrument. They may also have entitlements under contracts of employment and policies. The minimum entitlements include compassionate leave, personal or carers' leave (for example, due to school or child care facility closures) and community service leave.

Community service leave

Employees who are members of a recognised emergency management body, like SES, are entitled to take unpaid community service leave to allow them to engage in voluntary emergency activities.

Leave may be taken for the period that the employee is engaged in the particular emergency management activity, as well as for reasonable travel and rest time. There is no limit on the amount of community service leave an employee can take.

There is no legal requirement to provide paid community services leave under the Fair Work Act. However, many employers elect to provide paid leave or top-up pay. Employers should also be careful to check whether an employee's employment contract, enterprise agreement and/or applicable award provide for any paid community or emergency services leave entitlements.

The employee must be engaging in the activity voluntarily and either requested to engage in the activity or it would be reasonable for such a request to have been made if circumstances had permitted.

Managing health and safety risks

Employers need to be vigilant in ensuring the health and safety of workers and others in the workplace. Floods present hazards and risks at work not contemplated in times of normal operation.

Employers need to analyse the exposure to hazards and health and safety risks of people at the workplace:

where workers continue to work during the flood period;
before a return to the workplace; and
on an ongoing basis after return to work.

Employers should (in consultation with the workers and workplace health and safety representatives, if required):

Carefully consider the need for employees to travel to areas subject to an emergency warning - Employers should consider cancelling or postponing non-essential travel to minimise any potential risk to employees.
Identify hazards and risks at the workplace - Examples of hazards and risks that may arise include equipment or fittings that have moved, unstable buildings, damaged electrical and gas systems, equipment and tools, slippery surfaces, contaminated floodwater, floating debris, falling objects, crush injuries and psychologically traumatic observations. Employers may need specialised advice. Information about electrical safety during storms and floods is available at https://www.worksafe.qld.gov.au/safety-and-prevention/hazards/workplace-hazards/dangers-in-your-workplace/storms-and-floods and https://www.safework.nsw.gov.au/__data/assets/pdf_file/0011/143849/disaster_recovery_flood_tsunami_8563.pdf.
Eliminate or minimise and control the risks - This may involve excluding all persons from a workplace affected by flooding until the hazards and risks can be analysed and appropriate measures put in place. The person conducting an analysis of hazards and risks must be appropriately qualified and should undertake a safe work method statement or equivalent risk assessment process before entering the workplace.
Monitor and review the hazards and risks regularly and take steps as required to ensure the safety of persons - For example, monitor flood warning information and safely evacuate persons from workplaces as necessary where there is a risk to their health or safety.

Standing down employees without pay

In cases where a flood or storm has a significant impact on the business, an employer may need to close a workplace when access to it has been cut off, or no useful work can be performed due to structural damage, power outages, or for safety reasons.

Even if a workplace can remain open, many employees may be unable to attend for work due to road closures, lack of public transport, or being required to deal with personal impact of the emergency. This impact may include property damage, personal injury, loss and grief.

An organisation forced to temporarily close a workplace may in some circumstances stand employees down without pay. If an applicable industrial instrument or contract of employment does not have any stand down provisions, national system employers may rely on the stand down provisions in section 524 of the Fair Work Act. These provisions apply if an employer can establish closure of the workplace was for a reason for which the employer could not reasonably be held responsible. In the current circumstances, flooding of a workplace is likely to meet this description.

If a stand down occurs under the Fair Work Act, an employer is not required to make payments for that period, but may choose to do so anyway.

Alternative work

When work premises, plant and/or equipment are unavailable or non-functional, some employers may need to ask their employees to perform other duties. This might involve clean-up work or other alternative work that the employees are skilled and competent to perform but does not form part of the employees' ordinary duties.

Employers should firstly clearly explain what is necessary, how it is important to the future of the business, and seek each employee's agreement to perform any different duties. Employers should carefully consider any task specific safety and training requirements (for example, the safe use of substances and equipment).

If individual employees or groups of employees are not willing to perform alternative duties, and the circumstances require, an employer may need to consider whether it can lawfully and reasonably direct the employee(s) to do so.

The scope of an employee's duties may be controlled by the terms of the employee's employment contract, an enterprise agreement and/or the applicable award. To avoid industrial disputes or breach of industrial instrument/employment contract claims, employers should carefully consider whether any limitations apply and if so, how this can be managed.

Employers may also need to consider whether additional employment benefits (such as penalty rates and allowances) may apply to the alternative work performed by an employee. If so, employers need to explain these conditions to employees.

Redundancy

Regrettably, some businesses may be irreparably damaged where the effects of the flooding is especially significant or ongoing. In such cases, employers will be compelled to consider their obligations under any redundancy provisions in applicable industrial instruments, the Fair Work Act, contracts of employment and policies. These obligations may include notification, consultation and redundancy or permanent redeployment (including to an associated entity). Employers forced into administration, liquidation or receivership as a result of flood damage should calculate employee liabilities and inform their administrator accordingly.

Business recovery

In particularly severe cases, the issue of business recovery and restoration, or business resumption, arises. This is concerned with keeping people employed and safe, and keeping the business running.

Immediate recovery actions

Immediate recovery actions relevant to employment include:

maintaining a record of workplace injuries and follow up actions;
accounting for all workers;
coordinating notification of family members where an employee is injured;
establishing a recovery team, if necessary;
establishing priorities for resuming operations;
continuing to ensure the safety of personnel on the property;
assessing hazards and risks (see "Managing health and safety risks" above); and
conducting regular employment briefings.

Employee support

Employees will rely on employers for support after an emergency. Employers should consider the range of support measures they can provide or arrange for, including the arrangements discussed in the "How employers can support employees" section above.

Consultation

Employers will need to consider appropriate consultation with employees and, where required or desired, unions. Consultation may be required under an industrial instrument.

Work resumption plan

Employers will need to develop plans for workers to resume work and ultimately, to return to the workplace. Matters to consider include:

What steps need to be taken to ensure the work environment is safe and by when can these steps realistically be taken?
Do employees need an alternative work location? Where will this be? What will the arrangements be? When will the employees return to the workplace?
Who will assist with clean up and return to the workplace? Are these duties within the scope of employees' roles? (See "Alternative work" above).
What support is the employer prepared to provide to employees, and for how long? (See "How employers can support employees" above).

Authors: Trent Sebbens, Partner; and Ellen Mayr, Senior Associate.