You will recall in our last Bulletin we told you that if you employ staff in an area in which a Code Red is likely to be declared, you need to:

• assess the risks posed to your employees’ health and safety from working on a day of extreme fire potential; and
• weigh these risks against the practical measures you can take to mitigate those risks.

So what are your options if you decide that the only practical course is to prevent your employees from attending work?

1. Temporary shut down

If you decide not to open your doors on a working Code Red day, you can direct permanent employees to take annual leave. The Fair Work Act entitles employers to direct permanent employees to take paid annual leave during periods where their businesses are shut down. Again, in relation to casual employees you can simply indicate that they are not required to work on that day, in which case you will not be obliged to pay them for their shift.

Pros for this option

It allows you to tap excessive leave accruals to keep employees on full pay during the Code Red period.

Cons for this option

Some permanent employees will not have sufficient annual leave accruals, requiring you to advance the leave. Also you cannot try and operate your business yourself or with your partners, because if the business is operating then the “shut down” provisions of the Fair Work Act do not apply.

2. Stand down

An alternative to a shut down is “standing down” employees for the duration of the Code Red. Under the Fair Work Act, you can stand down permanent employees who cannot work for any cause for which you cannot reasonably be held responsible. Unlike a shut down, an employee that is stood down has no entitlement to be paid during the shut down period.

Pros for this option

You avoid the obligation to pay wages for work that is not performed.

Cons for this option

It will be difficult to argue that employees cannot work if you and your partners work on that day, which means you will probably have to close the doors. Also, employees are not being paid for something that is not their fault, which means they might challenge your right to stand them down in Fair Work Australia.

3. Stay home on full pay

Your simplest option is to ring up employees the night before a Code Red day and inform them that they should stay at home, with permanent employees receiving full pay for that day.

But remember, this option is also the most expensive!

Regards,

Charles Power
Editor-in-Chief
Employment Law Practical Handbook

Tags: code red, employee safety, fire safety