Given the Australian culture of wanting to ‘give back’ to our community, an employer may find that they have an employee/s who are active members of a volunteer emergency management organisation; such as a local fire brigade or State Emergency Service organisation. Such employees may find that they are required to be called in to perform such voluntary emergency service work during ‘work time’, particularly during periods of a natural disaster.
Under the National Employment Standards, an employee is entitled to be absent from work on unpaid community service leave for the purposes of engaging in community activities. This may include carrying out voluntary emergency management activities that involves dealing with an emergency or natural disaster, and performing these duties for a recognised emergency management body, such as a State Emergency Services organisation or volunteer rescue organisation.
State and territory emergency service laws can provide that an employer will not prevent an employee from performing volunteer emergency services work, nor will they victimise the employee in any way in their employment because of their voluntary emergency services activities.
In some jurisdictions, such as Queensland and Western Australia, an employer may also be liable for the payment of ordinary wages for the period an employee is absent performing volunteer emergency management activities.
Entitlement to be absent
The Fair Work Act 2010 provides that an employee who engages in an eligible community service activity will be entitled to be absent from his or her employment for a period if it consists of one or more of the following:
- Time when the employee engages in the activity;
- Reasonable travelling time associated with the activity;
- Reasonable rest time immediately following the activity, and
- In the case of emergency service activity – the employee’s absence is reasonable in all the circumstances.
Community service leave under the NES for the purpose of emergency service activities is unpaid. While such leave is authorised unpaid leave, the period of absence will counts as service for the purpose of the Fair Work Act 2009. This means that an employee will continue to accrue entitlements such as paid annual leave and paid personal/carer’s leave.
The National Employment Standards does not place a cap on the amount of community service leave for the purpose of emergency service activities that may be taken by an employee during any 12-month period of employment.
Authorised Emergency Service Activities
The types of emergency service covered under ‘community service leave’ are set out s109 of the Fair Work Act.
This provides that an employee will be carrying out a voluntary emergency management activity if:
- The employee carries out an activity that involves dealing with an emergency or natural disaster;
- The employee carries out the activity on a voluntary basis (whether or not the employee is directly or indirectly receiving an honorarium, gratuity or similar payment for the activity);
- The employee is a member of, or has a member-like association with, a recognised emergency management body;
- And either:
- The employee was requested by or on behalf of the body to carry out the activity, or
- No such request was made, but it would be reasonable to expect that, if the circumstances had permitted the making of such a request, it is likely that such a request would have been made.
The Fair Work Act refers to a ‘recognised emergency management body’ as meaning:
- A body that has a role or function under a designated disaster plan;
- Fire-fighting, civil defense or rescue body;
- Any other body — a substantial purpose of which involves securing the safety of persons or animals in an emergency or natural disaster, protecting property in an emergency or natural disaster, otherwise responding to an emergency or natural disaster.
Voluntary emergency service work
The Fair Work Act 2009 provides that an employer must not terminate an employee’s employment if they were engaging in voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.
Under the Fair Work Act 2009, a state or territory law that legislates with respect to attendance for ‘emergency service duties’ is not excluded by the Fair Work Act. As such, it is important to note that some laws may provide more beneficial conditions to an employee than the National Employment Standards. In such instances, it will be the terms of the relevant state or territory law which are enforceable.
For example, the respective emergency service laws in Queensland and Western Australia provide for payment by the employer of an employee’s ordinary wage for the period the employee is absent on emergency services work. Similar protection from dismissal to that provided under the Fair Work Act also exists under most state and territory emergency and rescue management legislation.
The following are the relevant state and territory emergency service legislation and the particular section of the legislation that relates to employment:
Northern Territory - Disasters Act – s 47 and Fire and Emergency Act 1996 – s.15
Australian Capital Territory - Emergencies Act 2004 – s 183
South Australia - Emergency Management Act 2004 – s.33
Tasmania - Emergency Management Act 2006 – s.57
Western Australia - Emergency Management Act 2005 – s.92
Queensland - Public Safety Preservation Act 1986 – s.44 and State Counter-Disaster Organisation Act 1975 – s.35
New South Wales - State Emergency & Rescue Management Act 1989 – Part 3A
It would appear that no statute in Victoria provides any such additional protections for an employee engaged in emergency service activities, other than those provided for in the Fair Work Act.