Disaster Legal Help Victoria

Employment and small business

Information for people who work for a business that has been affected by a disaster. It explains your rights, options and where to get help.

The page talks about minimum employment entitlements, particularly those under the National Employment Standards contained in the Fair Work Act.

A minimum entitlement means the least amount of payment or some other benefit that an employee is entitled to receive by law. You can be paid more or receive additional benefits (such as more leave) than is set out on this page.

You may also have entitlements under other state or federal laws, a modern award, an enterprise agreement, your employment contract or an employer policy (if any). Modern awards are documents made by the Fair Work Commission which contain minimum conditions of employment which supplement the National Employment Standards. These awards cover employees and employers in certain industries (such as the building, manufacturing, health, fast food and retail industries) or occupations (such as clerical workers). Most employees are covered by an award. Enterprise agreements are agreements made between an employer and some or all of its employees, often at a particular site. Usually, if an enterprise agreement applies to you, the relevant modern award does not. Importantly, you may receive more generous entitlements under one or more of these documents than what is set out on this page.

If you are unsure whether you are covered by a modern award or enterprise agreement, contact JobWatch on (03) 9662 1933 or the Fair Work Ombudsman on 13 13 94.

What can I do to prepare for a bushfire?

If you live in a bushfire-prone area you will have a safety plan to help you prepare for and respond to a bushfire. As part of that plan, you should also think about the impacts of a fire on your work (whether what is at risk is your home, your employer's home or your place of work). Try to identify your options (see below) and discuss these with your employer - before the heat is on. You might be able to agree in advance to certain changes to your working arrangements or to taking certain types of leave. This might save a lot of time and anxiety if a fire occurs.

Below we talk about the types of leave you can take to deal with a bushfire. You can also request a period of leave (particularly annual leave, long service leave or unpaid leave) to prepare for an upcoming season or an actual bushfire. Read on for further information about requesting and taking leave in times of bushfires.

Will I be paid if I am absent from work due to a bushfire?

If you are absent from work due to a bushfire you may, subject to your personal circumstances, be entitled to take the following types of paid leave:

  • paid personal/carer's leave
  • paid annual leave
  • paid compassionate leave.

Only full-time or part-time employees are entitled to paid personal/carer's, annual and compassionate leave, but certain eligibility requirements apply. In some circumstances, these employees are also entitled to long service leave. These employees may also be entitled to unpaid carer's leave or unpaid community service leave.

If you are a casual employee, you may, depending on your circumstances, be entitled to unpaid carer's leave, unpaid compassionate leave and paid long service leave.

Additionally, if you cannot attend work due to a bushfire, your employer may allow you to take unpaid 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 (for example, you are injured during a bush fire); 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 reasons listed above, you should tell your employer as soon as possible (ideally before your absence, if possible), and let them know how long you expect you will be away from work.

Your employer can ask you for evidence to prove the reason you took personal/carer's leave (for example, a medical certificate or a statutory declaration). You should provide any requested evidence to your employer as soon as you are reasonably able to (and no longer than within 24 hours of your employer's request unless exceptional circumstances exist). Your employer may have specific requirements about what types of evidence they need and when they require you to provide it.

How much paid 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 with your employer according to your ordinary hours of work and accumulates (carries over) from year to year.

You are entitled to take as much personal/carer's leave as you have accrued, provided the reason for taking that leave persists and you comply with all notice and evidence requirements.

Casual employees are not entitled to paid personal/carer's leave.

What if I don't have any paid personal/carer's leave?

If you do not have any paid personal/carer's leave available, or if you are a casual employee and you are not entitled to paid personal/carer’s leave, you may be entitled to take unpaid carer's leave or another form of leave.

You are 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 affecting that family member or because of unexpected emergency.

You should provide to your employer the same notice and evidence as if you were taking paid personal/carer’s leave.

If you can take paid personal/carer’s leave, you will not be permitted to take unpaid leave.

Can I take paid annual leave if I can't attend for work due to a bushfire?

When can I take paid annual leave?

If you have annual leave accrued, paid annual leave may be taken for a period agreed between you and your employer. If you cannot attend work due to a bushfire, you may ask your employer if you can take a period of your accrued annual leave. Your employer must not unreasonably refuse to agree to your request to take annual leave.

Whether or not it is 'unreasonable' for your employer to refuse a request for you to take annual leave will depend upon the surrounding circumstances. Unless there are exceptional circumstances, which require you to be 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 (carries over) from year to year.

Casual employees are not entitled to annual leave.

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, your employer may require you to take some of your accrued annual leave, but only if that requirement is reasonable. What is reasonable depends on a range of factors, including how much annual leave you have accrued. An employer might require you to take annual leave if its business is shut down by bushfire.

This position may be different if you are covered by a modern award or enterprise agreement which contains provisions about requirements to take leave.

Can I take long service leave due to a bushfire?

For most employees long service leave entitlements are covered by the relevant state or territory long service leave legislation. Under these laws most employees are entitled to long service leave after either seven or ten years continuous service with the same or a related employer.

In Victoria, an employee can request to take long service leave at any time after seven years continuous employment with the same or a related employer. If you request to take long service leave, your employer must grant that leave as soon as practicable, unless the employer has reasonable business grounds for refusing that request.

A request to take leave can be made for any period in excess of 1 day.

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 in specific circumstances such as unpaid carer’s leave, parental leave and community service leave).

However, you may request a period of unpaid leave from your employer at any time. Your employer is not required to agree to this request and if they grant unpaid leave, it is at their discretion.

During unpaid leave, your 'continuity of service' (how long you have worked for the employer) is not broken. However, your entitlements under the National Employment Standards (for example, personal/carer's leave and annual leave) will not accrue while you are on unpaid leave.

Can I take time off work to volunteer to fight bushfires?

If you volunteer to fight bushfires this may be 'community service' within the meaning given by the Fair Wok Act and so you may be able to take unpaid community service leave from work to volunteer.

When can I take community service leave?

Under the National Employment Standards, all employees are entitled to take unpaid 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; and
  • 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 advise them of the expected duration of your absence, as soon as possible. Your employer may require you to provide evidence 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 your 'continuity 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. However, 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 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 eligible community service activity where it was reasonable for you to be absent in the circumstances.

Contact JobWatchExternal Link or the Fair Work OmbudsmanExternal Link 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. Compassionate leave is for more severe circumstances than carer's leave. Only full-time or part-time employees are entitled to take paid compassionate leave. Casual employees will receive unpaid compassionate leave. You can take compassionate leave at any time while your immediate family member or member of your household has a life threatening illness or injury (eg, you do not need to take the leave as soon as your immediately family member becomes ill) . You may take compassionate leave as a single continuous two day period, or two separate periods of one day each.

You must give your employer notice when taking compassionate leave, and provide evidence of the reason to the leave if requested.

You can take compassionate leave each time a member of your immediate family or household contracts or develops a personal illness or sustains a personal injury that poses a serious threat to his or her life

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?

If your employer proposes to close its business or change your hours of work due to a bushfire, it may be required to consult with you before doing so. This consultation will be required if you are covered by an award or enterprise agreement. That document will contain further information about the consultation process.

Can my employer require me to take paid annual leave or long service leave if it temporarily closes due to a bushfire?

If you are a full time or part time employee, your employer may require you to take a period of paid annual leave if it is reasonable for them to do so. Whether or not a requirement for you to take annual leave is reasonable will depend on the particular circumstances. It may be reasonable if there is a bushfire that forces the business to close. This position may be different if you are covered by a modern award or enterprise agreement.

An employer can direct an employee who has accrued an entitlement to take long service leave to take some leave (at a specified time and for a specified period), but only by first giving at least 12 weeks' written notice. In a bushfire situation an employer is unlikely to be able to comply with this requirement for notice. In these circumstances, the employer might ask an employee to take this leave, but the employee can refuse.

Can my employer stand me down from work without pay?

Unless an enterprise agreement or contract of employment 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 due to a bushfire). An employer cannot stand down an employee just because of deteriorating business conditions.

You will not be entitled to be paid for the period you are lawfully stood down (except for any public holidays that you would otherwise have worked during the stand down period).

If you are to be stood down, you can make a request for paid annual or long service leave. However, you are not entitled to take paid personal/carer's or compassionate leave during a stand down period.

If you are improperly stood down (for example, work did not actually stop or did not have to stop), you will be entitled to recover any lost wages.

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 to accrue during the stand-down period, including annual leave, personal leave and long service leave.

A stand-down period should only be temporary.

You can work for other employers during a stand-down but only if your employer agrees.

The Fair Work Commission has power to deal with disputes about stand downs. For further information about this dispute resolution process, you can contact the Fair Work Commission on 1300 799 675.

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.

Can I take leave if my employer has stood me down?

During a stand down period you can make a request to your employer that you either:

  • take paid annual or long service leave; or
  • work at another location, such as from home, if you can reasonably compete work from home, if you can reasonably compete work from home.

Your employer must reasonably consider any request that you make to take paid leave, but is not obliged to agree to your request.

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 redundancy pay (sometimes known as severance pay). To be entitled to redundancy pay under the National Employment Standards, you must been employed by the business for at least 12 months and the business must have more than 15 employees. A "small business employer" (which is a business that employs less than 15 people including casual staff working on a regular and systematic basis) is not required to pay redundancy pay.

If you are entitled to redundancy pay, your minimum entitlement will be in accordance with the National Employment Standards as follows:

Period of continuous service with employer Redundancy entitlement
At least 1 year, but less than 2 years 4 weeks
At least 2 years, but less than 3 years 6 weeks
At least 3 years, but less than 4 years 7 weeks
At least 4 years, but less than 5 years 8 weeks
At least 5 years, but less than 6 years 10 weeks
At least 6 years, but less than 7 years 11 weeks
At least 7 years, but less than 8 years 13 weeks
At least 8 years, but less than 9 years 14 weeks
At least 9 years, but less than 10 years 16 weeks
At least 10 years 12 weeks

You may be entitled to a more generous redundancy payment if an applicable modern award, enterprise agreement or your employment contract provides you with an additional entitlement.

If you have been made redundant but believe your employer still requires your job to be performed by someone else, 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) 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 (for example, if you were employed for a specific period of time).

Your employer may choose to make a payment in lieu of notice to you instead of requiring you to work out the notice period.

Under the National Employment Standards, the minimum notice periods are as follows:

Period of continuous service with employer Notice period
Not more than 1 year 1 week
More than 1 year, but not more than 3 years 2 weeks
More than 1 year, but not more than 5 years 3 weeks
More than 5 years 4 weeks

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.

You may be entitled to a more generous notice period if an applicable modern award, enterprise agreement or your employment contract provides you with an additional entitlement.

You may also be entitled to receive other payments on termination, such as payment of any accrued but untaken annual or long service leave.

What if I don't receive my entitlements?

If you do not receive notice of termination or pay in lieu or redundancy pay (if your employment was terminated because of redundancy), or if your employer does not make any other payment due to you on termination (for example, for your accrued but untaken annual leave), you may make a complaint to the Fair Work Ombudsman. You should do this as soon as possible. You may also file a claim with a court.

If the Fair Work Ombudsman cannot assist you to recover your entitlements, or if you choose to take direct legal action against your former employer, any legal proceedings to recover your entitlements must be commenced within six years of the date that entitlement was due to be paid to you.

For more information about your entitlements, visit the JobWatchExternal Link 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 anymore?

Can I make an unfair dismissal claim?

If you think you were not legitimately made redundant (that is your employer still requires your job to be performed) or that the termination of your employment was otherwise harsh, unjust or unreasonable, you may be eligible to make an unfair dismissal claim to the Fair Work Commission.

If you are an employee of a small business (meaning a business that employs less than 15 people including casual staff working on a regular and systematic basis), you may only make an unfair dismissal claim if you have been employed by the business for more than 12 months.

If you have been employed by a business with more than 15 employees, you may make an unfair dismissal claim if you have been employed by the business for more than six months.

If you are not covered by an award or enterprise agreement, you must earn less than "the high income threshold" to be eligible to make an unfair dismissal claim. This threshold changes from year to year, but is currently $158,500 per annum.

Any unfair dismissal claim must be made within 21 days of the date your dismissal took effect.

The Fair Work Commission has power to order your reinstatement and/or payment of compensation (subject to a cap).

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, religion, sex, sexual orientation, age, disability or family/carer's responsibilities), or because you have made a complaint or inquiry about your workplace rights or you have 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.

If you have suffered some other disadvantage (for example, lost shifts) for one of these reasons, you must make a general protections claim within six years of that disadvantage.

In these circumstances, you might also have a discrimination claim which can be taken to a State or Federal anti-discrimination body or tribunal.

Where should I go for more information?

For more information about your entitlements or in relation to unfair dismissal, general protections, discrimination or underpayment 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.

Where to get help

JobWatch

Tel: 1800 331 617 (regional) or (03) 9662 1933 (metro), Monday to Friday, 9 am to 5 pm, Wednesday until 8.30 pm
www.jobwatch.org.auExternal Link

General

Fair Work Commission

Tel: 1300 799 675, Monday to Friday, 9 am to 5 pm
www.fwc.gov.auExternal Link

Fair Work Ombudsman

Tel: 13 13 94, Monday to Friday, 8 am to 5.30 pm
www.fairwork.gov.au

WorkSafe Victoria

Tel: 1800 136 089 (advisory line) and 13 23 60 (24/7 emergency line), Monday to Friday, 7.30 am to 6.30 pm
www.worksafe.vic.gov.auExternal Link

Victoria Legal Aid

Tel: 1300 792 387, Monday to Friday, 8 am to 6 pm
www.legalaid.vic.gov.auExternal Link

Counselling and support

NURSE-ON-CALL
Tel: 1300 606 024, 24 hours, seven days

https://www.health.vic.gov.au/primary-care/nurse-on-callExternal Link

Beyond Blue

Tel: 1300 224 636, 24 hours, seven days
www.beyondblue.org.auExternal Link

Interpreters and hearing impairment

Translating and Interpreting Service (TIS)

Tel: 131 450, 24 hours, seven days
www.tisnational.gov.au

National Relay Service

Tel: 133 677 (TTY service) and 1300 555 727 (speak and listen), 24 hours, seven days
https://nrschat.nrscall.gov.au/nrs/internetrelayExternal Link

Reviewed 03 May 2022