Are your employees entitled to take time off work to provide assistance
in fighting Australia’s current bushfires? Are employees entitled to
payment for any time off that they take?
During Australia’s current bushfire crisis, many emergency services
volunteers have been deployed to provide assistance in the affected
areas. Many of these volunteers may need to take time off work to
provide this assistance. What are these employees’ entitlements to
employer support?
Entitlement to Time off Work
Under the Fair Work Act 2009 (Cth) (“FW Act”), employees have an entitlement to ‘community service leave’.1
Community service leave includes the requirement to attend (and travel
to attend) an eligible ‘voluntary emergency management activity’. This
will include volunteer services such as the Country Fire Service and
State Emergency Services if:
- they are acting in their capacity as a volunteer for the emergency management body when dealing with the emergency or natural disaster; and
- they have either been requested by that body to provide assistance or it would be reasonably expected for them to do so in the circumstances.
Separately, while not covered by the FW Act, an employee who is an Army
Reservist may have an entitlement to army reserve leave in accordance
with the provisions of the Defence Reserve Service (Protection) Act 2001 (Cth) if activated for service.
Payment for the Leave
The FW Act does not provide an entitlement to payment from the employer
during an absence during community services leave (other than for jury
service). However, employees may be entitled to access other types of
paid leave if they meet the relevant criteria, such as annual leave or
long service leave.
While employees have no entitlement to wages for leave for emergency
management, they may have an entitlement to payment of wages under a
State or Territory Act. For example, in Queensland, employees may be
entitled to full pay while absent from work responding to a State
emergency if they meet the relevant criteria under the Public Safety Preservation Act 1986 (Qld).2
We encourage employers to consult their relevant State or Territory
legislation to determine whether they are required to pay employees who
are absent for emergency services activities. If you require legal
advice on these points, please contact us and we can refer to a legal
specialist.
Other Employee Protections
Both the FW Act and various State and Territory Acts provide protections
for persons who undertake community or emergency services. For example,
an employee who is discriminated in their employment for taking
community service leave would be able to make a general protections
claim against their employer under the provisions of the FW Act.
If any applicable policy or contract contains additional entitlements
for leave or payment, these must be applied in addition to the statutory
entitlements.
Require further information/assistance?
If you require further information or advice, please contact one of our consultants.
1 Fair Work Act 2009 (Cth) ss 108–110.
2 See Public Safety Preservation Act 1986 (Qld) s 44.