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Your workplace rights during natural disasters and emergencies

If there is a natural disaster or emergency, you might have questions about your workplace rights.

Who is this information for?

This fact sheet applies to all private sector employees in NSW.* 

Different entitlements may apply for employees of the NSW Government and local councils. If you are one of these employees you can contact your union or human resources unit for more information.

Your leave entitlements

During a natural disaster or emergency, you may need to take time off work because you are sick or injured, to care for your family, or to assist with disaster relief activities. This is a summary of the different types of leave you may be entitled to take during a natural disaster or emergency.

Remember to check any Award  or Enterprise Agreement that applies to you as it may change your leave entitlements.^

Annual leave

You are entitled to paid annual leave. You will accrue 4 weeks' annual leave per year. If you are a shift worker who you will accrue 5 weeks' annual leave per year. Annual leave is cumulative from year to year, that means if you do not take all of your leave in one year, the untaken leave is added to your entitlements in the next year, and so on.

Your employer can require you to to take annual leave at a particular time, if the requirement is reasonable. It may be reasonable for your employer to direct you to take annual leave during a natural disaster or an emergency if you are not able to work and you do not ask to take some other form of leave. Casual employees do not get annual leave.


 * This fact sheet applies to all employees covered by the Fair Work Act 2009 (Cth).
^ Awards are made by the Fair Work Commission and set minimum pay and conditions. The Fair Work Ombudsman can give you information about Awards, rates of pay, overtime, breaks and other entitlements. Phone 13 13 84 or go to www.fairwork.gov.au.

 

Paid personal / carer's leave

You can take paid personal/ carer's leave in the following situations:

  • when you are not fit for work because of sickness or injury; or
  • when you provide care or support for a family or household member who is sick or injured or who is affected by an emergency. The family member must be part of your immediate family.

You are entitled to 10 days' of paid personal/ carer's leave every year, and the balance is cumulative from year to year.

Casual employees do not get paid personal/carer's leave. However, casuals can still take unpaid time off from work when they are sick or caring for a family or household member.

Unpaid carer's leave

You can take unpaid carer's leave to provide care or support for a family or household member who is sick or injured, or affected by an emergency. The family member must be part of your immediate family.

You can take up to 2 days off for each occassion.

You must first take any paid carer's leave you have accumulated before taking unpaid carer's leave.

This entitlements applies to casual employees as well.

Compassionate leave

You can take paid compassionate leave when a member of your immediate family or a member of your household has a life threatening illness or injury, or dies.

You can take up to 2 days off for each occasion.

Casual employees do not get paid compassionate leave. However casual employees can take unpaid time off from work for compassionate reasons.

Community service leave to engage in emergency management activities

You are entitled to take unpaid leave to engage in voluntary emergency management activities. For this form of leave to apply all of the following must be happening:

  • your activity must involve dealing with an emergency or natural disaster;
  • you must be a volunteer;**
  • you must be a member of a recognised emergency management organisation (or have a similar type of association with that organisation); and
  • the organisation must have somehow requested you to engage in the activity. This includes where it is reasonable to expect that you would have received the request if circumstances permitted. For example, there was not enough time to make the formal request but you responded to the emergency anyway.

The period of unpaid leave you can take includes the following times:

  • the time you are engaged in the emergency management activity;
  • reasonable travel time; and
  • reasonable rest time immediately after the activity.

Long service leave

All employees are entitled to paid long service leave after working for the same employer for 10 years. Employees are entitled to 1 months' long service leave for each 5 years of service.


**While you must be a volunteer, you can receive an ex gratia payment or honorarium (a payment given voluntarily and without legal obligation) for engaging in the activity.

Some Questions and Answers

My home is affected by a natural disaster, such as flooding or a bush fire, can I take leave from work?

You could take paid or unpaid carer's leave if you live with someone else. This leave is available to provide care and support where a member of your family or household is affected by an unexpected emergency such as a natural disaster.

If you live alone, you could discuss with your employer taking annual leave, unpaid leave or long service leave.

My child's school is closed because of a natural disaster, can I take leave from work?

Yes, you could take paid or unpaid carer's leave.

I am injured as a result of a natural disaster, can I take leave?

You can take paid personal leave. If you are a casual employee you can take unpaid leave.

Can I take leave to help my community during a natural disaster?

You may be able to take community service leave to take part in emergency management activities. You can check if you are eligible for community service leave.

If you are not eligible for community service leave, you could discuss with your employer taking annual leave, unpaid leave or long service leave.

I can't get to work because a natural disaster or emergency is blocking the roads, do I still get paid?

Generally your employer does not have to pay you if you don't attend work in these circumstances. However, you could discuss with your employer taking annual leave or long service leave. If a family or household member is also affected by the emergency then you can take paid or unpaid carers leave if you are also caring for them.

What happens if my workplace is affected by a natural disaster or emergency and work has to stop?

Under the Fair Work Act your employer can stand you down without pay if you cannot usefully work because there is:

  • a breakdown of machinery; or
  • work stops.

However, this can only apply where ‘your employer cannot reasonably be held responsible' for the situation. For example, your employer closes the workplace because of a fire nearby or flood waters.

A stand down without pay cannot occur just because there are no customers or business is ‘slow'. If you are sent home in these circumstances you are still entitled to be paid.

If you are stood down from work without pay, you can take annual leave, or discuss with your employer whether you can take some other form of leave. If it will be a long period of leave without pay then long service leave may be an option for you.

Your employer can require you to take annual leave at a particular time, if the requirement is reasonable.

If an Award or Enterprise Agreement that applies to you includes a provision about stand down, your employer can only stand you down in accordance with that provision.

If you are a casual employee and you are not called into work then your employer does not have to pay you.

If you are stood down without pay, you can contact Centrelink on 13 28 50 to find out if you are eligible for any financial assistance. Centrelink may have representatives that you can talk to at a ‘disaster recovery centre'.


Can my employer direct me to help with clean- up activities at my workplace?

Yes, if the work your employer requests you to do is lawful and reasonable. Whether or not the request is reasonable will depend on factors including your skills, experience, health and any disabilities. Some tasks may also require specific safety training, equipment and procedures. While you are at work, your employer is required to ensure your health and safety. You cannot be directed to perform work that is unsafe or where you do not have the necessary safety equipment and safety procedures in place.

My workplace is closed due to a natural disaster or emergency, can my employer direct me to work at another location or from home?

Yes, if the direction is reasonable. If your employer directs you to attend a different work location which takes longer or is more expensive for you to travel to, you may be eligible for additional pay for travel time or reimbursement for your travel expenses.

If I work additional hours because of a natural disaster or emergency, do I get paid overtime?

In general, if you work additional hours you should get paid for them, at the rate in the Award or Enterprise Agreement that applies to you. You may also be entitled to other payments if you are working overtime, such as meal allowances.

You can find out your overtime rates and any other payments you are entitled to by checking your Award or Enterprise Agreement. If you have a written contract of employment, you should also check it for any relevant provisions.

If you are an employee who earns a salary you may not be entitled to overtime and allowances.

Am I a casual employee?

Casual employees generally work only when their employer offers shifts which the employee then works. Casual employees tend to work irregular shifts and their hours change from week to week.

Casual employees should have been informed by their employer that they are a casual employee under an Award or Enterprise Agreement, and should be paid the casual pay rates which include a casual loading.

Working out whether you are a causal employee or a permanent employee can be complicated. If you need specific advice on this issue, you should consult a lawyer or contact the Fair Work Ombudsman.

Contacts


 


Disclaimer: This information is a general guide to the law. It should not be relied on as legal advice. If you have a specific legal problem you should consult a lawyer.

The information contained in this publication is current as of January 2015.