A question about flood leave was recently sent to Workplace Info’s Ask an Expert service.
Our company, which is located in a regional area, was affected by flooding after a recent major storm. Several employees were unable to attend work because they had to mind their children because the local primary school was closed as a safety precaution. The employees have asked whether there is any entitlement to paid leave.
Is this a situation where the stand down provisions apply or is there an entitlement to some form of leave under the National Employment Standards?
In this case, there would be an entitlement to paid carer’s leave, provided the employees are employed full-time or part-time, and have a sufficient balance of accrued leave to cover the day. A casual employee would have an entitlement to unpaid carer’s leave.
The Fair Work Act (s97) provides that an employee may take paid personal/carer’s leave to provide care or support to a member of the employee’s immediate family or household because of personal illness or injury or an unexpected emergency affecting the member.
It is a common misconception that carer’s leave only applies to an employee who provides care or support to an affected family member or household member who is ill or injured. The courts, however, have determined that this may not necessarily relate just to a medical emergency.
For example, the Federal Circuit Court determined that an employee who needed to collect her primary school child from school because a friend could not pick up the child as usually arranged was an ‘unexpected emergency’ for the purposes of paid personal/carer’s leave. See Wilkie v National Storage Operations Pty Ltd  FCCA 1056. The above situation would appear to fall into a similar circumstance considered by the Federal Circuit Court matter.
Flexible work arrangements – modern awards
If an employee is unable to attend for work because of inclement weather, such as flooding, and the circumstance does not qualify for carer’s leave, all modern awards include a flexibility clause that enables an employer and an individual employee to amend certain terms of the award through a ‘flexibility arrangement’, provided the employee is not disadvantaged in comparison to the award.
Where an employee cannot attend work because of floods an employer could offer other alternatives, subject to the employee’s agreement. These alternatives may include: accessing a bank of rostered days off (RDOs), taking time off in lieu of overtime or offering access to forms of paid leave, such as accrued annual leave or long service leave.
Stand down provisions
The above circumstance would not be covered under the stand down provisions of the Fair Work Act (s524) as this only applies where an employer cannot usefully employ an employee due to circumstances beyond the employer’s control. An employee is not taken to be stood down without pay under the Fair Work Act during a period where the employee is taking paid leave, such as paid carer’s leave.
Stand down provisions may apply if, for example, an employer’s workplace has been inundated by flooding.
The bottom line: A full-time or part-time employee is entitled to paid carer’s leave if there is a requirement to provide care or support due to an unexpected emergency, even where the emergency is not a medical emergency.
Source: Workplace Info – a publication from Australian Business Consulting and Solutions. For more information visit: www.workplaceinfo.com.au