Job affected by Tropical Cyclone Yasi? Know your
employment rights
The recent tropical cyclone has, and will continue to, affect
the jobs of many members in FNQ. Workers may be faced with
redundancy, dismissal and pay issues as employers deal with its
impact.. If your employment is affected it is important you know
your legal rights.
Please visit our website for more
information about your employment rights.
The Fair Work Act 2009 (Cth) (FW Act)
sets out your minimum statutory entitlements. You may have
additional entitlements if your employment is covered by an award
or collective agreement or if you have a written contract of
employment.
The State and Commonwealth Government are offering financial and
other assistance to people affected by Tropical Cyclone Yasi. This
assistance is in addition to the rights set out below.
My employer has been forced to close. Can I be stood down?
The FW Act allows employers to stand
down employees without pay where they cannot usefully be employed
because:
-
the employer's machinery or equipment
has broken down and the employer is not, on reasonable grounds,
responsible for the break-down; or
-
work has stopped for a reason outside
the employer's control.
Your employer may allow you to take
paid or unpaid leave instead of being stood down.
There may be additional circumstances
under an enterprise agreement or contract in which an employer can
stand down employees, or additional rules may apply.
Therefore, you should check your
contract of employment and/or enterprise agreement for any
provisions dealing with stand down.
The FW Act allows an employer to
require employees to take annual leave. The requirement must be
reasonable.
An award or an Enterprise agreement may
impose additional obligations on your employer. For example, it may
require your employer to give you notice before asking you to take
annual leave.
An employer must not unreasonably
refuse a request by an employee to take annual leave.
If you are covered by an award or a collective agreement, or
have a written contract of employment, you may have a more
beneficial entitlement.
I couldn't get to work during Tropical Cyclone Yasi. Am I
entitled to take annual or natural disaster leave?
There is no general entitlement to
'natural disaster leave'.
However, some industrial instruments
contain provisions allowing employees to take special leave during
natural disasters such as tropical cyclones.
Not all employees have access to this
leave. You should check your contract of employment, award and
collective agreement to see if this applies to you.
An employer may allow employees to take annual leave or long
service leave at its discretion. An employer must not unreasonably
refuse your annual leave request.
My family has been affected by Tropical Cyclone Yasi. Can I
take personal or carers leave?
Most employees are entitled to take
paid personal leave to provide care or support to a member of their
immediate family, or a member of their household, who requires care
or support because of an unexpected emergency. An 'unexpected
emergency' includes a natural disaster such as the tropical cyclone
crisis.
Personal leave accrues at 10 days per
year and is cumulative. If you have exhausted your entitlement to
personal leave, or you are a casual employee, you may be eligible
to take a further two days of unpaid leave for each unexpected
emergency.
Employees may be required by their
employer to provide evidence of the care or support required. You
must comply with a request to provide reasonable evidence.
If you are covered by an award or a collective agreement, or
have a written contract of employment, you may have a more
beneficial entitlement.
A member of my family died or is seriously ill because of
Tropical Cyclone Yasi. Am I entitled to take compassionate
leave?
An employee is entitled to take two
days paid compassionate leave for each occasion when a member of
the employee's household or immediate family dies, or has an injury
or illness that poses a serious threat to his or her life.
Compassionate leave can be taken to spend time with the ill or
injured person. It may also be taken after their death.
Casual employees are entitled to take
unpaid compassionate leave.
If you are covered by an award or a collective agreement, or
have a written contract of employment, you may have a more
beneficial entitlement.
I'm volunteering during Tropical Cyclone Yasi. Am I entitled to
Community Service Leave?
Employees covered by the FW Act have an
entitlement to unpaid community service leave when they are engaged
in voluntary emergency management activity, including responding to
a natural disaster.
Community service leave covers absences
from work for reasonable travelling time, participation in the
emergency management activity and reasonable rest time immediately
after the activity.
To be eligible for community service
leave you must be a member (or have a member-like association with)
a recognised emergency management body such as the SES. It is not
enough to simply volunteer to assist.
If you take community service leave,
you must notify your employer as soon as possible. This can be
after the leave has started.
If you are covered by an award or a collective agreement, or
have a written contract of employment, you may have a more
beneficial entitlement.
I couldn't make it to work during Tropical Cyclone Yasi. What
happens if I lose my job?
Your employer must have a valid reason
to terminate your employment. Ordinarily, failure to attend work
without notice and/or excessive absenteeism forms a valid reason.
However, it may not be a valid reason where you were unable to
attend work due to a natural disaster.
Employees should contact their employer
as soon as possible and advise them of the reason for their
absence, and give a realistic estimate of when they will be able to
return to work.
If your employment is terminated because you could not attend
work due to Tropical Cyclone Yasi, you may be able to bring an
unfair dismissal claim. Unfair dismissal claims must be brought
within 14 days of the date of termination but can be extended in
exceptional circumstances. However, you should bring your claim as
soon as possible.
I'm going to lose my job because of Tropical Cyclone Yasi. What
are my rights?
Following crises such as tropical
cyclones, employers whose businesses are affected may be forced to
retrench employees. This is called redundancy.
For the purposes of an unfair dismissal
application, a redundancy must be genuine. A redundancy will be
genuine if:
-
your employer no longer needs your
job to be done by anyone due to operational reasons; and
-
your employer has complied with any
consultation provisions under an industrial instrument; and
-
The employer has considered whether
it would have been reasonable to redeploy the employee within its
enterprise or an associated enterprise.
Not all dismissals that arise from the
tropical cyclone crisis will be genuine redundancies. If you
believe that your employment has been terminated without a valid
reason, you may be able to seek a remedy for unfair dismissal.
Unfair dismissal claims must be brought within 14 days of the date
of termination, unless there are exceptional circumstances.
Under the FW Act you are eligible for
redundancy pay if you have been employed for at least 12 months and
your job is made redundant. There are some exceptions. Under the
Act, only your service from 1 January 2010 is counted for the
purpose of calculating your entitlement.
However, if you had an entitlement to
redundancy pay in an industrial instrument before 1 January 2010,
some or all of your service may be counted.
In addition, you will be entitled to be paid in lieu of notice
of termination, and to be paid your statutory entitlements,
including accrued annual leave.
My employer can't reopen for business. What happens to my
employment entitlements?
If your employer's business closes
because of Tropical Cyclone Yasi and you lose your job, your
employer must still pay your employment entitlements, including
redundancy (if applicable), notice of termination and your accrued
entitlements such as annual leave.
Your employer must pay these amounts to you immediately after
your employment is terminated. If your employer cannot pay your
entitlements, you may be eligible for assistance through the
Commonwealth Government General Employee Entitlements and
Redundancy Scheme ('GEERS'). More information on GEERS is available
at www.deewr.gov.au/geers .
Click
here to print the fact sheet.