Special Edition newsletter: Employers’ obligations amid looming Cyclone Alfred
As the southeast Queensland and parts of northeast New South Wales brace for Cyclone Alfred to make landfall within the next 72 hours, now is the time for employers to prepare, communicate and execute a plan for how the wild weather may impact their business operations and the safety of their employees. This includes in terms of employees attending for work. Employers will need to have particular regard to their workplace health and safety obligations under the Work Health and Safety Act 2011 (Qld) (WHS Act) at this time and assess (for example) the risk of workers becoming injured during their commute to or from work or potentially whilst working from home (WFH). Depending on the industry, employers may also need to have regard to inclement weather provisions that might apply (under an award or enterprise agreement) or the stand down provisions under the Fair Work Act 2009 (Cth) (FW Act) if employees are unable to work because of Cyclone Alfred. This is detailed further below.
WHS Obligations to employees
Persons conducting a business or undertaking (PCBU) have a legal responsibility under the WHS Act to ensure, so far as is reasonably practicable, the health and safety of its workers and of the workers whose work activities are influenced or directed by it. This primary duty of care extends to hazards that are physical, biological, chemical, psychosocial, and seasonal (such as a tropical cyclone), that may be present in any place that a worker is directed to work. Accordingly, as above, employers will need to consider the potential safety risks associated with employees commuting to and from work during Cyclone Alfred, working during hazardous weather conditions (such as in exposed areas), and/or working remotely/from home.
As an example, if an employee were injured on their way to work because of Cyclone Alfred, their employer would likely be liable to a workers’ compensation claim (explained further below). The employer may also be exposed the risk of failing to comply with obligations under the WHS Act to ensure the safety of the employee so far as is reasonably practicable (such as by not requiring them to attend for work).
Work Health and Safety Act 2011
Workers Compensation Claims
As referred to above, the predicted weather conditions may result in employers being inundated with workers’ compensation claims from injured employees.
The Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCR Act) compensates employees for injuries that arise out of, or in the course of, employment. Accordingly, employees may be eligible for workers’ compensation for injuries that arise out of commuting to and from work in unsafe weather conditions, such as high winds or flash flooding.
However, employers should be aware that their WHS obligations and liability for employees’ safety also extend beyond the office walls as employees who are injured whilst WFH may also be eligible for workers’ compensation if they are injured while working. Just like working in an office or ‘onsite’, this generally includes during work and during breaks.
In the recent case of Lauren Vercoe v Local Government Association Workers Compensation Scheme [2024], Magistrate Carrel found that an employee’s injury which arose from tripping over a metal pet fence while WFH was compensable because it occurred in the course of her employment.
Accordingly, it is important for employer to be mindful of the various risks that WFH may pose to employees’ health and safety while working, as well as the potential risk to a business’s cybersecurity. Common hazards employees may be exposed to when WFH include:
- dangerous working environment;
- sedentary work;
- slip, trip and fall hazards;
- psychosocial hazards;
- fatigue; and
- difficulty getting help from others,
- amongst others.
Accordingly, employers should seek legal advice regarding their workers’ compensation insurance, particularly in relation to employees working from home in a different state or territory.
Workers’ Compensation and Rehabilitation Act 2003 (Qld)
Separately, a sudden shift to remote work may pose a risk to a business in terms of its cybersecurity, privacy and confidentiality. This is as WFH employees may be vulnerable to cyber and ‘phishing’ attacks whilst away from the secure firewall of their usual place of work. Accordingly, employers should remain vigilant and ensure that they have adequate cybersecurity and WFH policies and procedures in place. If this is not the case, please contact us for assistance.
Stand-down provisions during weather events
Further, if a workplace is affected by a natural disaster or severe weather event such that employees can no longer be usefully employed, employers may be able to “stand down” their employees. That is, under s.524 of the FW Act, employers can lawfully stand down an employee without pay where the employee cannot be usefully employed or because of a stoppage of work which the employer cannot be held responsible for.
For instance, in Marson v Coral Princess Cruises (N.Q.) Pty Ltd t/a Coral Expeditions [2020], the Fair Work Commission found it was lawful to stand down 107 employees to prevent the spread of COVID-19 after business operations were suspended.
However, the terms ‘usefully employed’ and ‘stoppage of work’ under the FW Act have been open to considerable interpretation. Accordingly, employers should seek legal advice before standing down any employees. Otherwise, they could be exposed to the risk of breaching the FW Act (among other things).
We not that employees cannot be stood down just because the business is quiet or because there is not enough work due to unruly weather. An employee’s enterprise agreement or employment contract may also impose additional requirements before an employer can stand down an employee.
Alternatives to standing down employees may include:
- inviting employees to take a period of accrued paid leave by agreement;
- considering alternative duties/work location if available; or
- flexible working arrangements, such as working from home/remotely.
As mentioned, employers should obtain legal advice before taking any action to stand down employees, particularly given the complex interplay of the provisions with awards and other industrial instruments.
Michael Marson v Coral Princess Cruises (N.Q.) Pty Ltd T/A Coral Expeditions [2020] FWC 2721
Inclement
Separately to the above, an employee may be entitled to pay for time lost due to ‘inclement weather’ under an applicable award or enterprise agreement. Such as under the Building and Construction General On-site Award 2020.
Inclement weather is weather that is unsafe or unreasonable for an employee to work in because of severe weather (such as heavy rain and high winds). During inclement weather, employees may be directed by their employer not to attend for or to stop work, and employees may be entitled to pay while not working.
Employers should seek legal advice before issuing any such direction to ensure that it is compliant with any relevant award, enterprise agreement or any other registered agreement that covers its employees.
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