For growers impacted by Tropical Cyclone Debbie it is important to understand how to best manage your skilled workforce and not lose good employees.
What are your options?
1. Standing down employees
- Where an employer is unable to provide work, for a reason which it can not reasonably be held responsible, the Fair Work Act Sect 524 allows an employer to stand down or “suspend” employees without pay until work becomes available.
- If an employer is faced with no other option but to stand down employees without pay, the employer should meet with the affected employees as soon as possible to inform them of the decision and the reasons behind it.
- This period of contact is good time to discuss alternative options available to the employees such as paid leave (where eligible employees have accrued such entitlements) or alternative employment with a farm or business nearby until work becomes available.
Please see below for the relevant provisions drawn out of the Fair Work Act
FAIR WORK ACT 2009 – SECT 524
Employer may stand down employees in certain circumstances
(1) An employer may, under this subsection, stand down an employee during a period in which the employee cannot usefully be employed because of one of the following circumstances:
- (a) industrial action (other than industrial action organised or engaged in by the employer)
- (b) a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown;
- (c) a stoppage of work for any cause for which the employer cannot reasonably be held responsible.
(2) However, an employer may not stand down an employee under subsection (1) during a period in which the employee cannot usefully be employed because of a circumstance referred to in that subsection if:
- (a) an enterprise agreement, or a contract of employment, applies to the employer and the employee; and
- (b) the agreement or contract provides for the employer to stand down the employee during that period if the employee cannot usefully be employed during that period because of that circumstance.
Note 1: If an employer may not stand down an employee under subsection (1), the employer may be able to stand down the employee in accordance with the enterprise agreement or the contract of employment.
Note 2: An enterprise agreement or a contract of employment may also include terms that impose additional requirements that an employer must meet before standing down an employee (for example requirements relating to consultation or notice).
(3) If an employer stands down an employee during a period under subsection (1), the employer is not required to make payments to the employee for that period.
2. Redundancy and redeployment
- This option should be a last resort for employers.
- Where an employer may not have any work available for the foreseeable future, an employer may have no other option but to make a position or positions redundant.
- Where a ‘stood down’ employee chooses to resign to obtain other paid work before their position is declared redundant, he/she will not be entitled to redundancy pay.
- The Horticulture Award or workplace agreement provisions state, the employers are obligated to consult with affected employees, and where relevant, employee organisation/s (Unions) and Centrelink.
- The employer will be required to genuinely consider redeployment to another part of the business or to another farm (where the option is available) and upon termination give those affected employees the appropriate notice or payment in lieu.
3. Circumstances where obligation to pay redundancy entitlements is reduced
- Redeployment of the redundant workforce should be a focus of the employer.
- Where an employer can successfully find employees suitable alternative work, there may be grounds for FWA to reduce the amount of redundancy paid out to affected employees under the Fair Work Act.
- If an employer is facing thousands of dollars worth of redundancy payments, efforts in redeployment could significantly reduce the amount of redundancy payments owed to affected employees.
- Where the employer dismisses 15 or more employees, redundancy payments must be made to eligible employees in accordance with the redundancy provisions of the Horticulture Award or workplace agreement.
- Employers with a workplace agreement should compare the redundancy pay entitlements contained in the agreement against the rates contained in the National Employment Standards (NES) and where the NES provides for a greater entitlement than the agreement, the NES redundancy entitlement will apply.
4. Exclusions from obligation to pay redundancy pay
- In accordance with the NES, casual employees and permanent employees with less than 12 months continuous service are exempt from receiving redundancy pay entitlements.
- Employers with less than 15 employees are exempt from redundancy pay obligations. In relation to employers with a workplace agreement, the above exemptions apply unless the agreement states otherwise.
