Feb 14th, 2018
Recent events in NSW involving a planned, agreed and then botched rail strike have raised a number of questions around rights and obligations in the workplace after a major disruption. As businesses across the State held grave fears around both staff and customer availability, a tangible fear was also prominent amongst workers who believed they would be simply unable to get to work. To most people’s relief, the strike was blocked at the last minute by the Fair Work Commission, but it would be naïve to assume that something similar – or just as damaging – won’t ever happen again. This article will shed light on the rights of employers and employees after a major event or disruption and provide tips on how to cope if a similar situation was to occur in the future.
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While the purpose of this article certainly isn’t to provide an analysis on industrial action itself, it’s important to understand why, and more importantly how the recent rail calamity transpired. In December 2017, the NSW Government overhauled its transport timetables with the aim of providing more bus and train services for commuters. Given the staffing levels at Sydney Trains, this would only be achievable through workers engaging in overtime across the board. In short, this was a recipe for disaster. In early January, rail services were temporarily crippled after a large number of train drivers called in sick on the same day. This was seen as a form of covert industrial action. The wheels were set in motion for something far more significant, and before long a 24-hour strike was planned for Monday January 29th. This was a deliberate and strategic ploy by the Rail Tram and Bus Union to force the State Government into a corner knowing more than just empty train stations were at stake. This was, after all, the week in which school resumed in NSW. Thanks to last minute legal action, the Fair Work Commission stepped in and placed a ban on the industrial action stating both safety and economic concerns. If it did occur however, how could it have affected your practice?
The most obvious ramification from a workplace perspective would have been employees being unable to attend work – or at least attend with a great deal of difficulty. While the Fair Work Act 2009 doesn’t provide a specific remedy for a situation quite like this, employers aren’t without options.
An employee has a right under the Act to request annual leave, and these requests can’t be unreasonably refused by the employer. In a circumstance like what could have occurred in late January, it would be a primary recommendation to allow all employees to take a day of annual leave.
Leave without pay.
Alternatively, leave without pay can also be arranged for those without sufficient annual leave in their balance. Other employees may be loathe to use their annual leave entitlement for a situation like the one being discussed, so both parties can agree on those individuals using leave without pay instead. Please note, it is always recommended to provide paid leave if it is available.
It could be the case that a major disruption causes a strain on the schooling system, forcing parents to care for their children at a time in which they would otherwise be in school. In these circumstances, employees with school children can in fact access their personal/carers leave entitlement. This is because section 97b (ii) of the Fair Work Act 2009 provides that an employee can access personal carers leave “ to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:
(i) a personal illness, or personal injury, affecting the member; or
(ii) an unexpected emergency affecting the member.
Natural disasters and extreme weather.
Living in Australia has obvious perks, but it can also leave us prone to the wrath of mother nature. In circumstances where a natural disaster or extreme weather affects a practice to the point where employees can not be usefully employed, those employees can be stood down without pay. This can also be initiated after a breakdown of machinery, or any other event that causes work to stop for which the employer can not be held reasonably responsible. Keep in mind, just because employees can be stood down without pay, doesn’t mean they can’t access their paid annual leave entitlement if they have sufficient leave accrued.
Where possible, plan ahead!
If there was any sort of silver lining to the proposed industrial action that could have crippled an entire city – and potentially state – it’s that it had been confirmed weeks before it was due to go ahead. This at least gave employers some form of opportunity to plan ahead in the hope of mitigating the consequences for their workplace. If this was to occur again, immediately begin discussions with your employees about how best to limit the damage once the day – or event arises. As Benjamin Franklin famously once declared – “failing to plan is planning to fail”.
You will find just some of our resources on types of leave in the resources section of our website
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