In brief - Stand-downs may be among options to consider
Employers should not assume that they can require employees to take annual leave when forced to shut down due to circumstances outside their control, such as natural disasters.
Employers should consider risk of incorrectly allocating days during natural disasters
As a result of the former tropical cyclone “Debbie” making her way down the Queensland coast and the resulting flood chaos, the Queensland Government took the unprecedented step of closing schools and workplaces in anticipation of the severe weather. Mid-city locations and suburban hot-spots which would normally be bustling with lunch time crowds were empty.
With workplaces compulsorily closed, questions quickly arose about how to account for the day/part of the day of work and leave.
We know that a number of media outlets reported that employers could require employees to take annual leave in exchange for the day/part day off or that they could require staff to work additional unpaid days to account for any hours paid, but not worked.
In our view, the media's position will not be right in every case. There is significant risk to employers in getting the allocation of the cyclone day, and any flood or disaster days wrong. There are also other options to consider, like stand-downs which might be a more appropriate way to account for these days.
National Employment Standards, awards and agreements
Under the National Employment Standards (NES) in the Fair Work Act 2009
, employees are entitled to four weeks annual leave (or five weeks where they are shift workers). Under section 88
, paid leave may be taken at a time agreed between an employee and employer. For employees covered by a modern award or an enterprise agreement, the NES allows for those agreements to include terms about when employees can be required to take annual leave in certain circumstances, but only if the requirement is reasonable (see section 93).
Some modern awards or agreements include clauses allowing employers to impose annual leave on their employees in accordance with operational requirements, in limited circumstances
. For example, the Clerks Private Sector Modern Award
has a clause that allows employers to demand employees take a day of annual leave as long as the employer has provided the employee with four weeks’ advance notice. As no one had four weeks' notice of the cyclone day, or the subsequent flood days, the Clerks Private Sector Modern Award
will not allow for employers to require clerical employees to take annual leave for the recent cyclone day and subsequent flood days.
For employees not covered by an award or agreement, employers can require an employee to take annual leave when the requirement is reasonable (see section 94
), as per the NES. The NES provides an example of where the requirement may be reasonable, which includes where the employer’s enterprise is shut down for a period. Cyclone or flood day may not be regarded the same as a shut-down (for which employees often have notice). According to various Fair Work Commission decisions, if an employer requires an employee to take annual leave (rather than letting them choose to take annual leave or other leave) to account for natural disasters such requirements are likely to be unreasonable.
Review modern awards or enterprise agreements and consider stand downs as an option in emergency situations
Without careful review of the applicable modern awards or enterprise agreements, it would be unsafe to assume that an employer can require employees to take annual leave to account for the cyclone day or the subsequent flood days.
The Act does allow for employees to be stood-down
in certain circumstances where there is no useful work to be done for reasons outside of an employer's control, including in extreme weather events. Periods of stand-down are unpaid. In stand down cases an employee could request
to be paid annual leave as an alternative to not being paid. This is likely to be a more appropriate way of dealing with these types of emergency situations.
Employers should consider seeking legal advice about how this issue can be managed in their workplaces.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.