Q&A: Natural disaster issues for WA employees

Casual and permanent distinction

If you are a casual employee, you are not guaranteed shifts from your employer, and its lawful not to provide you with shifts, particularly where there is a downturn in business. The information below applies to permanent employees.

Stood down WITH pay

If you are not required at work but you are still being paid, this is generally lawful, particularly if it is for a temporary period while the business recovers.

Stood down WITHOUT pay

You can be asked to stop working without pay, but only in limited circumstances.

If you are a permanent employee, the general rule is that you must be paid or compensated for work that you are ready willing and able to do, even if there is no work available.  For example, your employer can’t stand you down without pay simply because there is a business downturn.

However, the law also recognizes that employers may sometime be forced to stop operating for issues beyond their control, and in some of these circumstances it’s lawful to stand down employees without pay.

Business interruptions as a result of natural disasters can sometimes fall into this category.

The first step is to find out if you are covered by an award or agreement that has rules about stand down. You can do this by calling the Fair Work Infoline if you are a national system employee (13 13 94), or Wageline if you are a state system employee (1300 655 266). If you aren’t sure which you are, you can call Wageline for help in figuring it out, or read Q&A: State or national system for WA employees

If there are no rules in an award or agreement that covers you, the next step is to check your contract of employment. If it authorises a stand down during stoppages of work, it’s likely that this applies to you. If your employment contract has rules about stand down, but they seem unreasonable, you may wish to seek legal advice.

State system employees

If you are a state system employee and there are no rules in an award, agreement or contract about stand down, then your employer is unlikely to have the power to stand you down without pay.

Even if you can insist on being paid from a legal perspective, if your employer is not operating and not trading, then they may be unable to pay you, and you may end up being made redundant. For this reason, you can consider if you want to come to another arrangement with your employer, particularly if you think the recovery period will be temporary. For example, you could agree to take accrued annual leave or agree to take unpaid leave.

National System Employees

National system employees who do not have any provisions about stand down without pay in their contract, or in an award or agreement, should consider whether their employer can stand them down without pay under the Fair Work Act 2009 (Cth).

Under the Fair Work Act, national system employees may be suspended from work without pay if there has been a stoppage of work for reasons outside the employer’s control. A natural disaster can oftentimes completely prevent an employee from doing their job, and therefore could be a reason why an employee could be stood down without pay.

However, if the employee can still do useful work, it is unlikely that the natural disaster would be a valid reason for stand down without pay under the Fair Work Act. For example, if the natural disaster:

• only reduces business for the employer (without physically preventing the employee from doing their job); or
• there is another way for the employee to continue working (such as being permitted to move to another work location, perform their work from home, or do other duties).

For more information on alternative work arrangements see “Can I be made to work at a different location whilst my workplace is recovering?” or “Can I be assigned duties different to my contract while my workplace is recovering?” below.

You may also wish to read the Fair Work Ombudsman’s fact sheet on natural disasters here:

https://www.fairwork.gov.au/tools-and-resources/fact-sheets/rights-and-obligations/employment-entitlements-during-natural-disasters-and-emergencies

Your employer may be able to assign you to different duties while your workplace is recovering from the effect of natural disasters.

First check your contract or any applicable award or agreement for whether you can be assigned to different duties. You may want to contact Wageline or the Fair Work Ombudsman for more information about awards or agreements you may be covered by.

Even if your contract, award, or agreement does not say anything about being assigned different duties, employers are generally allowed to direct employees to do alternative duties, as long as the direction is lawful and reasonable.

A direction will generally be lawful as long as it is not against the law. Therefore, your employer cannot make you do anything that would likely breach work, health, and safety laws. For example, it is likely unlawful to make a café worker put out bushfires.

Whether an instruction is reasonable can depend on your:

• current role;
• skillset; or
• pay

For example, it may be unreasonable for an employer to require a bookkeeper to do dishwashing.

If you do not believe that the direction is lawful and reasonable, then you may want to raise this with your employer. Certain complaints and enquiries regarding are protected, see Q&A: Protected complaints and actions for WA workers for more information.

If you do not comply with an employer’s reasonable and lawful direction, then your employer may be able to take disciplinary action against you. Failure to comply with a reasonable and lawful direction can be a form of serious misconduct, which can allow your employer to dismiss you on the spot. Time limits for dismissal claims can be as short as 21 days from the date of dismissal, see Q&A: Dismissal for WA employees for more information.

Your employer may be able to make you work at a different location whilst your workplace is recovering from the effect of natural disaster.

First check your contract or any applicable award or agreement for whether you can be assigned to a different location. You may want to contact Wageline or the Fair Work Ombudsman for more information about awards or agreements you may be covered by.

Even if your contract, award, or agreement does not say anything about being assigned to a different location the employer is generally allowed to direct employees to work at a different location as long as it is lawful and reasonable.

Whether it is lawful will depend on whether it goes against any employment laws or the industrial documents. For example, it can depend on whether relocation is permitted in your contract. If it is not permitted and your employer cannot change the terms of your contract without your permission, you may be able to bring a breach of contract claim, or denial of contractual benefits claim against the employer if you are forced to work at a different location. Generally, there is a 6 year time limit to make a contractual claim see Q&A: Employment contracts for WA workers for more information.

Whether it is reasonable to be moved to a different location will depend on the circumstances. For example, it can depend on:

• distance from original location;
• accessibility; or
• travel time.

If you do not believe that the direction is lawful and reasonable, then you may want to make a request for free legal advice here.

There are different types of leave that you may be able to take when a natural disaster occurs. For more information on leave entitlements generally see Q&A: Minimum conditions of employment for WA employees.

Personal leave

Employees (except casual employees) can use their paid personal leave balance in circumstances where they:

• are unfit to attend work (including physical injury, sickness, or mental illness); or
• if they have to care for a family or household member.

For example, you may wish to take paid personal leave to care for your child, if their childcare is closed due to bushfire.

Unpaid Carer’s leave

All employees are entitled to two days of unpaid personal leave for each occasion where a family or household member requires care or support due to:

• an injury or illness; or
• an unexpected emergency affecting the member.

Annual leave

Employees (except casual employees) may wish to draw from their annual leave balance to address issues stemming from natural disaster. For more information about when you may be required to take annual leave see “Can my boss make me use my annual leave when there is no work due to natural disaster?” below.

Compassionate and bereavement leave

There is leave that may be available upon the death or life-threatening illness/injury of member of your household or family. The type of leave you are entitled to can depend on whether you fall under the national system or state system. See Q&A: State or national system for WA employees if you are unsure which system you fall under.

National system employees (except casual employees) may be entitled to 2 days of paid compassionate leave per occasion if a family or household member has:

• sustained a life-threatening illness/injury; or
• passed away.

State system employees (including casual employees) may be entitled to 2 days of paid bereavement leave for the death of a family or household member.

Your employer is generally not allowed to put you in a dangerous situation because they have a duty (responsibility) to do what is reasonable to keep you safe at work. If the employer is requiring you to work in a natural disaster risk location, this may be a breach of work, health and safety laws.

You may be putting your job at risk if you simply refuse to work. In most circumstances, the best approach is to state that you are ready, willing and able to work, but don’t want to undertake unsafe work. You could ask to be put on alternative, safe duties until you can perform your regular role in a safe way.

To report safety concerns you can contact WorkSafe. If you would like information on your options to take leave from work, see above “I need leave from work to address issues stemming from natural disaster, what do I do?”

The general rule is that annual leave is taken by agreement between an employer and an employee.

An employer may be able to direct an employee to take annual leave during a business shut-down, if they are authorized to do so under an industrial award, industrial agreement, or under the Fair Work Act.

If you aren’t sure if you are covered by any of these instruments, you can call Wageline (state system employees) or the Fair Work Infoline (national system employees).

Keep in mind that the default position is that annual leave is taken by agreement. So if your employer is directing you to take annual leave, you may wish to ask which law, award or agreement they are relying on.

If your employer is lawfully allowed to stand you down (see above), then you are not entitled to be paid, so may wish to agree to take annual leave.

For an authorised unpaid stand-down, the majority of employees (other than casual employees) will:

• accrue annual leave and personal leave on their hours they would ordinarily be working; and
• be paid for public holidays that occur during periods of stand down without pay.

Time limits to make a dismissal claim can be as short as 21 days from the date of dismissal, so its important to act quickly.

If you have lost your job because the business has shut down or there is not enough work available, it’s likely that you have been made redundant. There are rules around how redundancies should occur. You may be entitled to redundancy pay. If a redundancy didn’t occur properly, you may have an unfair dismissal claim.

For more information see Q&A: Dismissal for WA employees and Q&A: Redundancy for WA employees.

• Q&A: State or national for WA employees
• Q&A: Dismissal for WA employees
• Q&A: Meetings and other internal processes for WA employees
• Q&A: Redundancy for WA employees
• Q&A: Minimum conditions of employment for WA employees
• Q&A: Employment contracts for WA workers
• Q&A: Protected complaints and actions for WA employees

Circle Green Community Legal

WA employees can request free and confidential legal assistance with employment and workplace discrimination issues from Circle Green Community Legal.

• Complete an online request: org.au/get-help
• Telephone enquiries: 08 6148 3636 (Please note that we do not provide on demand legal advice)

For further information on our Workplace law services, please visit: circlegreen.org.au/workplace

Other organisations

Fair Work Commission

• Web: fwc.gov.au

Western Australian Industrial Relations Commission

• Web: https://www.wairc.wa.gov.au/

WorkCover

• Web: https://www.workcover.wa.gov.au/

WorkSafe

• Web: https://www.commerce.wa.gov.au/worksafe/