During the recent weather events many businesses shut, resulting in employees being sent home and not being able to return to work for a few days.
A question we are hearing from employers is;“Do we have to pay the staff?”. Similarly, we have had friends (employees) ask us, “Isn’t it sick pay?
The answer is – it is (mostly) up to the employer! If an employer has to temporarily shut during a natural disaster or emergency, then the employer
has some discretion to determine employee entitlements during the closure.
Under the Fair Work Act 2009 (Cth), generally an employer may “stand down” employees without pay where they cannot usefully be employed during a period
of stoppage of work for which the employer cannot reasonably be held responsible, such as a natural disaster ie. cyclone/floods.
Accordingly, an employer has the option to:
not pay the employee for the period of closure
pay the employee for the entire period of closure
give employees the option to take annual leave for all or part of the period; or
offer a combination of the above (ie. part paid, part unpaid or annual leave).
Employees are not entitled to take “personal” (sick) leave during a period when the business is simply shut due to a natural disaster.
However, if the employee , or a member of the employee’s family is affected (e.g. injured) by the natural disaster, they may have an entitlement to
paid personal/carer’s leave or compassionate leave.
What about in the days after a cyclone or flood when the workplace was open (so the employee could have gone to work), but they could not because daycare/schools
were closed and the employee had to care for children?
An employee who is entitled to take personal/carer’s leave under the National Employment Standards in the Fair Work Act is entitled to take personal/carer’s
if they are unfit for work because of their own personal illness or injury; or
to provide care to support a member of their immediate family or household, because of an illness or an unexpected emergency (which includes a
natural disaster, like a cyclone or flood).
Employees who have used up all their ‘paid’ personal/carer’s leave are entitled to an extra 2 days unpaid leave in such a circumstance.
If this was the case last week, then yes, generally employees who had to care for children due to daycare/school closures are entitled to take carer’s
leave (if available). This may not apply to scheduled school holidays though, depending on the circumstances.
For assistance with these or any other employment law matters contact us.