This factsheet is for people who work for a small business that has been affected by a bushfire. It explains your rights, options and where to get help.
You can order a hard copy of this factsheet from Victoria Legal Aid.
The factsheet talks about minimum entitlements under:
- the National Employment Standards contained in the Fair Work Act 2009 (Cth) (the Fair Work Act); and
- other entitlements in the Fair Work Act.
A minimum entitlement means the least amount of payment or some other benefit that a person is entitled to receive under certain rules. You can be paid more or receive more leave, for example, than is set out in these rules.
You may also have entitlements under other state or federal legislation, an award, an enterprise agreement, a common law employment contract or an employer policy (if any). You may receive more generous entitlements under these instruments. You should obtain legal advice about your particular employment situation.
Will I be paid if I am absent from work due to a bushfire?
If you are absent from work fire due to a bushfire you may, subject to your personal circumstances, be entitled to take:
- paid personal/carer's leave;
- paid annual leave; or
- paid compassionate leave.
Only full-time or part-time employees accrue paid personal/carer's leave and paid annual leave.
Alternatively, if you cannot attend for work due to a bushfire, your employer may allow you to take unpaid leave, unpaid carer's leave or unpaid community service leave.
Can I take personal/carer's leave if I am absent from work due to a bushfire?
When can I take personal/carer's leave?
You may take personal/carer's leave (often referred to as sick leave) if you are away from work because:
- you are not fit for work due to a personal illness or injury; or
- you are caring for an immediate family member, or a member of your household, who has an illness or injury or is affected by an unexpected emergency (for example, if your child's school is closed due to a bushfire).
What do I need to do?
If you need to take leave for one of the above reasons, you should tell your employer as soon as possible.
Your employer can ask you for acceptable evidence to prove the reason you took personal/carer's leave (for example, a medical certificate or a statutory declaration). You should provide such evidence from your employer within 24 hours of your employer's request or as soon as you are reasonably able to.
How much personal/carer's leave am I entitled to?
Under the National Employment Standards, full-time employees are entitled to 10 days of paid personal/carer's leave per year of service with their employer. Part-time employees are entitled to paid personal/carer's leave proportionate to their hours of work. Personal/carer's leave accrues during a year of service according to your ordinary hours of work and accumulates from year to year.
What if I don't have any accrued personal/carer's leave?
If you do not have any paid personal/carer's leave available, you may request to take unpaid leave or annual leave.
You are also eligible for up to two days of unpaid carer's leave on each occasion that a member of your immediate family or household requires care or support because of a personal illness or injury or because of unexpected emergency.
Can I take paid annual leave if I can't attend for work due to a bushfire?
When can I take paid annual leave?
Paid annual leave may be taken for a period agreed between you and your employer. If you cannot attend for work due to a bushfire, you may ask your employer if you can take a period of your accrued paid annual leave. Your employer must not unreasonably refuse to agree to your request to take paid annual leave.
Whether or not a refusal by your employer to grant you a period of paid annual leave is 'unreasonable' will depend largely upon the surrounding circumstances. Unless there are exceptional circumstances, which absolutely demand that you are at work, it is likely that a refusal by your employer to allow you to take paid annual leave due to a bushfire would be considered unreasonable.
How much paid annual leave am I entitled to?
Under the National Employment Standards, full-time employees are entitled to four weeks of paid annual leave per year of service. Part-time employees are entitled to paid annual leave proportionate to their hours of work. Annual leave accrues during a year of service according to your ordinary hours of work and accumulates from year to year.
Can my employer require me to use my accrued annual leave if I am absent from work due to a bushfire?
Under the National Employment Standards, if you are not covered by a modern award or enterprise agreement and cannot attend for work due to a bushfire, your employer may require you to take some of your accrued annual leave, but only if that requirement is reasonable.
The position may be different if you are covered by a modern award or enterprise agreement.
Contact JobWatch or the Fair Work Ombudsman’s Information Line for more information about annual leave (see contact details below).
Can I take unpaid leave if I am absent from work due to a bushfire?
The National Employment Standards does not provide for an express entitlement to unpaid leave (other than unpaid carer’s leave, parental leave and community service leave).
However, you may request a period of unpaid leave from your employer. Your employer should not unreasonably refuse a request for unpaid leave. In circumstances where you have unused paid annual leave, your employer may require you to use your paid annual leave first before taking unpaid leave.
Your entitlements under the National Employment Standards (for example, personal/carer's leave and annual leave) will not continue to accrue while you are on unpaid leave.
Can I take time off work to volunteer to fight bushfires?
When can I take community service leave?
Under the National Employment Standards, you are entitled to take community service leave to perform a 'voluntary emergency management activity' that involves dealing with an emergency or natural disaster, such as a bushfire. You are only permitted to take such leave if:
- you engage in the activity on a voluntary basis;
- you are a member of a recognised emergency management body (such as the Country Fire Authority), and
- either that body asks you to participate in the activity, or
- it would be reasonable to expect that it is likely the request would have been made had the circumstances permitted (for example, to fight a rapidly spreading bushfire).
How much community service leave can I take?
There is no set limit on the amount of community service leave you can take. You are entitled to be absent from your employment:
- for the time you are engaged in the eligible community service activity, including reasonable travelling time associated with the activity and reasonable rest time immediately following the activity, and
- if the absence is reasonable in the all the circumstances.
What do I need to do?
If you want to take community service leave you must give your employer notice of your absence, and the expected duration of your absence, as soon as practicable. Your employer may require you to provide evidence that would satisfy a reasonable person that you are entitled to take the leave, such as a copy of the request for you to participate in the activity.
Will I be paid when I take community service leave?
Community service leave to fight bushfires is unpaid. However, a period of community service leave does not break the continuity of your period of service with your employer. If you take time off work to fight a fire as part of community service leave, the period of your leave will count as service with your employer.
Can I be dismissed if I take community service leave?
It is unlawful under the Fair Work Act for an employer to dismiss you because you were temporarily absent from work to perform a voluntary emergency management activity where it was reasonable for you to be absent in the circumstances.
Call JobWatch or the Fair Work Information Line to confirm your eligibility to take community service leave.
Can I take compassionate leave?
If a member of your immediate family or household dies or sustains an injury that poses a serious threat to their life, you may be entitled to two days of paid compassionate leave.
In cases of illness or injury of a member of your immediate family or household, compassionate leave may be taken at any time while the condition persists. Once again, evidence of the reasons for the leave must be provided if requested by your employer.
For more information about personal/carer's leave, compassionate leave and annual leave, you can contact the Fair Work Ombudsman on 13 13 94.
What happens if my employer has to temporarily close due to a bushfire?
Can my employer require me to take paid annual leave if it temporarily closes due to a bushfire?
Under the Fair Work Act, unless an applicable modern award or enterprise agreement provides otherwise, your employer may reasonably require you to take a period of paid annual leave if it shuts down due to a bushfire.
Can my employer stand me down from work without pay?
Under the Fair Work Act, unless an applicable modern award or enterprise agreement provides otherwise, your employer can stand you down (tell you not to come to work) for any period where you cannot be usefully employed for any reason for which the employer is not reasonably responsible (for example, if your employer's business is forced to close during or following a bushfire). You will not be entitled to be paid for the period you are stood down.
If you are stood down and your employer has not obeyed the law (for example, work did not stop or did not have to stop), you may be entitled to recover lost wages and entitlements.
During the stand-down period your 'continuity of service' (how long you have worked for the company) is not broken. The stand-down period counts as service for all purposes. Other entitlements continue ('accrue') during the stand-down period, including annual leave, personal leave and long service leave.
A stand-down period should only be temporary, and you cannot be stood down if at the time of the attempted stand-down you were on paid or unpaid authorised leave or were otherwise authorised to be absent from your employment.
You can work for other employers during a stand-down if your employer agrees.
If you are unsure about how stand-downs affect your entitlements, please contact the Fair Work Ombudsman on 13 13 94.
If you have been stood down without pay, you may also wish to contact Centrelink on 13 28 50 to discuss the options available to you based on your circumstances.
Will I still be paid if my employer has lost their business due to a bushfire?
Am I entitled to redundancy and severance pay?
If you are a full-time or part-time employee and your employer no longer requires the job you were doing to be done by anyone (for example, if the business will not be re-opened after a bushfire) then your job has been made redundant. If your job has been made redundant, you may be entitled to severance/redundancy pay.
If there is no provision in your contract of employment, or an applicable Modern Award or Enterprise Agreement which states otherwise, you will be entitled to redundancy pay in accordance with the National Employment Standards as follows:
If you are unsure whether you are covered by a modern award or enterprise agreement or want for more information about redundancy and severance/redundancy pay contact JobWatch on (03) 9662 1933 or the Fair Work Ombudsman on 13 13 94.
If you have been made redundant but believe your employer still requires your job to be performed by someone, you may have been unfairly dismissed. Unfair dismissal claims must be filed with the Fair Work Commission within 21 days after the dismissal takes effect. Contact the Fair Work Commission on 1300 799 675 for further information.
Will I be given notice of my termination or pay in lieu of notice?
If you are a full-time or part-time employee and your employment is terminated (ended) due to redundancy, or for other reasons, your employer must give you at least the minimum period of notice of termination you are entitled to under the National Employment Standards (unless you were dismissed for serious misconduct or your employment has ended at the conclusion of a specified (agreed) task or period of time).
Your employer may choose to pay you in lieu (instead) of requiring you to work out the notice period.
Under the National Employment Standards, the minimum notice periods are as follows:
If you are over 45 and have completed more than two years of service with your employer, you are entitled to an additional week of notice.
What if I don't receive notice of termination or pay in lieu of notice?
If you do not receive notice of termination or pay in lieu, you may make a complaint to the Fair Work Ombudsman. You should do this as soon as possible. If your entitlement to notice of termination comes from an Enterprise Agreement, Australian Workplace Agreement, Individual Transitional Employment Agreement or contract of employment you may also file a claim with the Fair Work Ombudsman.
If the Fair Work Ombudsman cannot recover your pay in lieu of notice, any legal proceedings to recover your pay in lieu of notice must be commenced within six years of the date your notice was due to be paid to you.
For more information about notice of termination (failure to give notice or pay in lieu) visit the JobWatch website or call JobWatch on (03) 9662 1933 (Melbourne callers) or 1800 331 617 (country callers) or contact the Fair Work Ombudsman on 13 13 94.
What if I don't have a job any more?
Can I make an unfair dismissal claim?
If you were not legitimately made redundant (i.e. your employer still requires your job to be performed) or you think that the termination of your employment was otherwise harsh, unjust or unreasonable you may be eligible to make an unfair dismissal claim. Any unfair dismissal claim must be made within 21 days of the date your dismissal took effect.
Can I make a general protections claim?
If you are dismissed or disadvantaged by your employer for a discriminatory reason (for example because of your race, sex, age, family or carer's responsibilities, etc.), or because you have made an inquiry into your workplace rights or sought to exercise your workplace rights (for example, your entitlement to take paid or unpaid leave in accordance with the National Employment Standards), you may be able to make a claim known as a general protections claim under the Fair Work Act. Any general protections claim involving termination of your employment must be made within 21 days of the date that you are dismissed.
Where should I go for more information?
For more information on unfair dismissal, general protections dispute claims and recent changes to the law, visit the JobWatch website or call JobWatch on (03) 9662 1933 (Melbourne callers) or 1800 331 617 (country callers) or contact the Fair Work Commission on 1300 799 675
You may also like to contact Centrelink on 13 28 50 to discuss the options available to you based on your circumstances.
What if I am covered by an award or an enterprise agreement?
In addition to the provisions in the National Employment Standards discussed above, you may have other entitlements under a modern award or enterprise agreement which may be relevant if you are unable to attend work due to a bushfire.
If you are not sure whether you are covered by a modern award or enterprise agreement, you should call the Fair Work Ombudsman on 13 13 94.
Where to get help
Victoria Legal Aid
Tel: 1300 792 387, Monday to Friday, 8:45 am to 5:15 pm.
For free legal information visit www.legalaid.vic.gov.au.
Tel: 1800 331 617 (country callers) or 9662 1933, Monday to Friday, 9 am to 5 pm – closed Tuesday 12 pm to 2 pm.
See the homepage for more information on employment issues, your rights and the law, and how JobWatch can help you: www.jobwatch.org.au.
Fair Work Commission
Tel: 1300 799 675, Monday to Friday, 9 am to 5 pm
Fair Work Ombudsman
Tel: 13 13 94, Monday to Friday, 8 am to 5:30 pm.
WorkSafe Victoria (WorkCover)
Tel: 1800 136 089 (advisory service) and 13 23 60 (24-hour emergency response line), Monday to Friday, 8:30 am to 5 pm.
Counselling and support
NURSE-ON-CALL: 1300 606 024, 24 hours a day, seven days a week.
Beyond Blue: 1300 224 636, 24 hours a day, seven days a week.
Interpreters – Translating and Interpreting Service
Tel: 131 450, 24 hours a day, seven days a week.
Hearing impairment – National Relay Service
Tel: 133 677 (TTY service) and 1300 555 727 (speak and listen), 24 hours a day, seven days a week.