Employment and small business
Last updated 14 April 2010
This factsheet is for people who work for a small business that has been affected by a bushfire. It explains your rights and 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 (the NES)
- other entitlements in the Fair Work Act 2009 (the FW Act)
- other Victorian state acts.
A minimum entitlement means the least you are entitled to 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 acts, an award, enterprise agreement, Individual Transitional Employment Agreement, Australian Workplace Agreement, common law employment contract or employer policy (if any). You may receive bigger entitlements under these rules. Get legal advice about your particular employment.
Only permanent full-time or part-time employees accrue paid annual leave and paid sick/personal leave.
Can my employer require me to use holidays or sick leave that I’ve already got to cover my absence from work due to a bushfire?
Sick/personal leave
Your employer cannot legally require you to use the sick leave you already have (usually called personal leave) to cover you if you miss work because of the bushfires. This is unless you are away due to illness, injury or unexpected emergency.
Sick/personal leave can only be taken legally when you are away from work due to illness, injury or unexpected emergency. You should also get a medical certificate and give it to your employer within 24 hours or as soon as you are reasonably able to.
Annual leave
Under the NES your employer can tell you to take some of your annual leave, but only if the requirement is reasonable. For example:
- If you have accrued an excessive amount of paid annual leave; or
- If your employer shuts down its business or a part of its business where you work, for example, over the Christmas/new year break. In these circumstances you should be credited with at least the amount of leave your employer wishes you to take.
Contact JobWatch or the Fair Work Information Line for more information about annual leave (see below).
However, if you have already taken unpaid leave due to a bushfire, your employer cannot legally deduct those leave days from the annual leave you’ve stocked up, without your agreement. Your employer does not have to pay you for days that you are away from work unless you are on paid sick/personal leave or annual leave. In most cases where you are not eligible for paid personal/sick leave, you and your employer may agree that you either take unpaid leave or annual leave.
Unpaid leave
There is no automatic right to unpaid leave in the NES but you may still request unpaid leave from your employer.
Will I be paid for time off to fight fires?
There is no automatic right in the FW Act to be paid wages because you took time off to fight a bushfire.
Community service leave
Under the community service leave provisions in the NES, certain employees may be entitled to be absent from work for a reasonable period to fight bushfires. Strict definitions, notice and evidence requirements apply, so call JobWatch or the Fair Work Information Line to confirm your eligibility. Community service leave to fight bushfires is unpaid leave.
Can I take leave for injuries?
Under the NES, you can take sick/personal leave if you have accrued sick/personal leave and are away from work due to illness, injury or an unexpected emergency. You should get a medical certificate and give it to your employer within 24 hours or as soon as you are reasonably able. You can also take personal/carer’s leave to provide care or support to an immediate family member or a member of your household due to their illness, injury or an unexpected emergency.
If you do not have any paid sick leave available, you may request to take unpaid leave or annual leave.
If a member of your immediate family or household requires care or support due to illness, injury or an unexpected emergency, you may be entitled to two days unpaid carer’s leave, though this can only be taken where you have no paid personal/carer’s leave available. Evidence of this injury or emergency must be supplied to your employer if requested.
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, this 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 sick/personal/carer's leave, compassionate leave and annual leave, you can contact JobWatch or the Fair Work Infoline on 13 13 94.
Will I still be paid if my employer has lost their business?
Stand down (being told not to come in to work temporarily)
Under the FW Act, if you cannot be usefully employed during a period for a particular reason, an eligible employer can stand you down for that period. You will not be entitled to be paid for the stand down period. This includes periods where work stops for any reason for which the employer is not reasonably responsible. This could include where the business is affected by a bushfire.
This does not apply to all employers. If you are stood down and your employer has not obeyed the law, 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.
Redundancy and severance pay
If the employer no longer wishes the job you were doing to be done by anyone, for example, the business will not be re-opened after a bushfire, then your job has probably been made redundant. If your job has been made redundant, you may be entitled to severance/redundancy pay.
This entitlement will depend on the rules governing your employment, for example, the NES or enterprise agreement, if any. Alternatively, your redundancy entiltlement may be governed by your contract of employment or any employer policies that may be in place regarding redundancy and severance/redundancy pay.
For more information about redundancy and severance/redundancy pay contact JobWatch or the Fair Work Infoline on 13 13 94.
Notice of termination or pay in lieu of notice
If your employment is terminated (finished) due to redundancy or for other reasons and you were a permanent employee, your employer must give you at least the minimum notice of termination to which you are entitled. This does not include if there was serious misconduct. If they do not give you the minimum notice, they must give you pay in lieu (instead of) to make up for this.
If you are not required to work during the notice period, your employer will be required to pay you 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 or 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 instead of notice, any legal proceedings to recover your pay instead 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 9662 1933 (Melbourne callers) or 1800 331 617 (country callers) or contact the Fair Work Infoline on 13 13 94.
What if I don’t have a job anymore?
If you no longer have a job and you think that the termination of your employment was harsh, unjust or unreasonable or otherwise unlawful you may be eligible to make a General Protections Dispute application. Any unfair dismissal claim must be made within 14 days of the date your dismissal took effect.
For more information on unfair dismissal, General Protections Dispute claims and recent changes to the law, visit the JobWatch website or call JobWatch on 9662 1933 (Melbourne callers) or 1800 331 617 (country callers or contact Fair Work Australia on 1300 799 675).
Where to get help
Victoria Legal Aid
Tel: 1800 113 432, Monday to Friday, 8.45 am to 5.15 pm, for free bushfire legal information and referrals, www.legalaid.vic.gov.au/
JobWatch
Tel: 1800 331 617 617 (country) 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 Australia Help Line
Tel: 1300 799 675, Monday to Friday, 9 am to 5 pm, www.fwa.gov.au
Fair Work Infoline (Fair Work Ombudsman)
Tel: 13 13 94, Monday to Friday, 8 am to 6 pm
WorkSafe Victoria (Work Cover)
Tel: 1800 136 089 (Advisory service) and 132 360 (24-hour emergency response line), Monday to Friday, 8.30 am to 5 pm, www.workcover.vic.gov.au (see bushfire recovery page)
Fair Work Australia
Tel: 1300 799 675, Monday to Friday, 9 am to 7 pm, www.fwa.gov.au
Department of Human Services (DHS)
Tel: 1800 050 400 (Victorian Bushfire Case Management Service), Monday to Friday, 8 am to 5 pm and tel: 1800 240 667 (Victorian Bushfire and Storm Information Line), Monday to Friday, 8 am and 6 pm, www.dhs.vic.gov.au/em/bushfire-recovery
Counselling and support
NURSE-ON-CALL Bushfire Health and Counselling Line: 1300 606 024, seven days, 24 hours a day
Beyond Blue: 1300 224 636, seven days, 24 hours a day, www.beyondblue.org.au
Interpreters – Translating and Interpreting Service (TIS)
Tel: 131 450, seven days, 24 hours a day
Hearing impairment – National Relay Service
Tel: 133 677 (TTY service) and 1300 555 727 (Speak and listen), seven days, 24 hours a day
Other resources
See the 2009 Bushfire Legal Help Handbook and other fact sheets.