“If you are on already on annual leave, your entitlements would continue for the duration of that leave,” Professor Forsyth said.
Employees would mostly need to rely on the different types of leave available to them. Whether an employee who lost their house would be paid during time taken off would largely be at the discretion of employers.
“There is no specific leave that deals with this sort of circumstance,” Professor Forsyth said.
“Some EBAs [enterprise bargaining agreements] allow the employer and employee to agree on unpaid or paid leave in non-specific circumstances that arise that could deal with this sort of situation.”
Joellen Riley Munton, professor of law at the University of Technology Sydney, said it would be open to employers to allow employees to take personal leave in emergency situations and some EBAs may have provisions dealing with this.
“If your place of employment burns down it would depend on whether the employer had another location or could accept service from home or somewhere else,” she said. “If they could, then your employment contract would not be terminated just because the work location disappeared.
“In the case of complete destruction of a small business I imagine the employer could say that the employment contract has been frustrated.”
Senior Employment Relations Adviser from Employsure, Michael Wilkinson, said it was important for employers to apply the correct employee entitlements during a closure as a result of an emergency.
“It is not mandatory for stand downs to be unpaid. Your employer may choose to continue to pay staff, but this is at their discretion,” he said.
Mr Wilkinson said employers and business owners had a range of options such as asking employees to take paid annual leave or considering flexible work arrangements, like working from home.
He said a significant bushfire event would qualify an employee to take carer’s leave to deal with an unexpected emergency and to support their immediate family or household.
Permanent staff who have accrued annual leave may also use their annual leave entitlements in these circumstances with the employer’s agreement.
“Where a member of an employee’s immediate family or household sustains a life-threatening injury or illness, or dies, the employee is entitled to two days’ paid compassionate leave (unless they are casual employees, in which case the leave is unpaid),” Mr Wilkinson said.
“Where an employee is not entitled to any of the above paid leave, an employer can allow the employee to take paid or unpaid ‘special leave’ to address their personal circumstances at this difficult time.”
Australian Council of Trade Unions assistant secretary Liam O’Brien encouraged “all employers to be supportive of bush-fire-affected employees acknowledging the extraordinary challenges posed by this unprecedented crisis”.
“The ACTU urgently calls on the federal goverment to provide a comprehensive financial support package for bush fire affected communities.”
Anna Patty is Workplace Editor for The Sydney Morning Herald. She is a former Education Editor, State Political Reporter and Health Reporter.