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Introduction: Australia’s extreme and unprecedented bush fires must change everything
Australia’s bush fire season again started well before normal because of desiccated soil and foliage, brought on by the warming of the atmosphere because too much greenhouse gas has been pumped into it, and reinforced by long term failure of LNP governments in particular and energy employers to mitigate against climate change. The death and devastation brought upon people and nature is both tragically obvious and loaded with many other implications now more obvious than they were, and others not yet so.
There are so many aspects to what must change and why.
In this piece I focus on extreme and unprecedented bush fire smoke and the clash between workers’ rights and the employer’s right to stand down workers without pay. We take a close look at section 524 of the Fair Work Act 2009 (FWA09) regarding “stand down” rights for employers, especially to stand down without pay. (In a follow up we will look more closely at workers’ rights and bush fire smoke relative to the Workplace Health and Safety Act (WH&S).)
The fundamental question is this: why should workers lose pay, or annual leave, or long service leave because of a bush fire smoke situation for which they cannot be held responsible?
This is especially relevant for workers in regional areas where wages incomes tend to be lower than in large regional and capital cities, although there are some obvious exceptions.
Union action already underway
Continuity of income when stood down is particularly important because unions, among other solidarity actions with communities directly affected, are now trying to work out at least what should be changed in workplace and industrial law in this new situation.
Despite its current review of the FWA09 this will not be a priority for the government nor the employer organisations that pushed the government into it.
Recent examples of unions pushing workers’ rights include:
Waterfront workers’ (MUA) industrial dispute over exposure to extreme bushfire smoke with DP World.
Just last week Michelle O’Neill (President of the ACTU) asserted that the current bushfire relief supplement for those who have been affected by the bushfires, at $40 a day, is not enough. She proposed that the Disaster Relief Allowance must be lifted to the level of the minimum wage and provided to all affected and rapidly delivered.
And Unions NSW Secretary, Mark Morey, reported by the Sydney Morning Herald, is proposing changes to the NSW Workplace Health and Safety Act that have been forwarded to the regulator, Safework NSW.
“We need to have a uniform response where workers should be found alternative work or allowed to go home if they are working in hazardous conditions, and not be financially penalised for that,” he said.
Standing down because of bush fire smoke: Fair Work Act 2009 – s. 524
On the face of it, the FWA09 enables an employer, at section 524 (see below), to stand down workers in circumstances of intense bush fire smoke, because they can say that it is a circumstance for which they cannot be held responsible.
This appears to be an uncritically accepted view, including among some labour lawyers. For example:
“In contrast, under the Fair Work Act, business owners have the right to stand down staff without pay where work must stop due to circumstances beyond the employer’s control – such as the impact of bushfires.” (And also here.)
It is true that the intent of s. 524 is to maximize employers’ access to stand down rights and, as such, is a good example among many of the “broken rules” from the point of workers. This is what it says, in part:
Employer may stand down employees in certain circumstances
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: …
c) a stoppage of work for any cause for which the employer cannot reasonably be held responsible.
(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.
Whether or not there is a natural disaster, or health emergency, or ‘act of god’ to use common parlance, does not appear to be relevant for the purposes of s. 524. I am not a lawyer and it is possible that there is judge made law on this that is relevant. I am happy to be corrected, if necessary.
Clearly, however, s.524 can deny workers continuity of income for a circumstance for which they cannot be held responsible, at least even less so than their employer. If stood down without pay they are forced to subvert their annual leave and long service leave rights and entitlements, if they have any.
Obviously, this part of the Act needs to be changed so that workers’ rights to continuity of pay and proper use of annual leave and long service leave are not compromised.
There is no sign from the LNP government that this will be addressed in its current review of the FWA09.
What if the employer can, at least to some extent, be held responsible for dangerous levels of bush fire smoke?
S. 524 does impose a limit on when an employer can stand down workers.
The cause of the circumstance that has stopped work must be something “for which the employer cannot reasonably be held responsible”.
Is extreme and unprecedented poisonous bush fire smoke something “for which the employer cannot reasonably be held responsible?
Remember, we are not talking about “an act of God” or a “natural disaster”. The science of what is happening is clear.
The flow of causation works like this (in reverse): extreme bush fire smoke – unprecedented bush fires in volume and intensity – desiccated foliage of all types – extreme hot and dry conditions outside of normal season – global warming of the atmosphere – increases in greenhouse gases – major sources of greenhouse gas emissions – coal and gas intensive economies controlled by energy transnational corporations and others. This is now established by scientists and scientific organisations of many kinds and fire-fighting experts.
Some employers, especially the Commonwealth government as an employer, can reasonably, on the science, be held responsible.
In the current unprecedented and extreme bush fire smoke circumstances this may have two applications.
The first application is probably the most contentious and difficult to apply.
Does an employer that makes a significant contribution to atmosphere warming and the flow of causation bear some responsibility for bush fire smoke circumstances? Does an employer who does not recognize and take seriously the scientifically established flow of causation bear some responsibility for the bush fire smoke circumstance?
If the answer to these and associated similar questions is YES or YES IN PART then it can be argued that the employer can reasonably be held responsible or partly responsible. (The lawyers will have a feast on the world “responsible”.)
This means that a s. 524 stand down without pay applied by the employer may be wrongful.
I am not aware of any action by unions along these lines. However, it is something that should be talked through with the workers affected and then unions together before seeking the assistance of industrial lawyers. There is some really good union education work that can be done in such a process.
The Commonwealth government as an employer
The second application holds more practical substance. It applies to workers who are employed in Commonwealth government agencies and, maybe to workers employed in a private company carrying out work under contract and supervision of a Commonwealth agency.
The fundamental question is this: does the Commonwealth have responsibility and opportunity to take responsible action to prevent and reduce the risk of bush fire disaster and the consequent circumstance of extreme bush fire smoke circumstances in workplaces?
First, we know about the general policy inadequacy about climate change and the destruction it brings (high carbon emission levels have stopped coming down) and the governments failure, indeed opposition, to pro-actively explain the science to the general public.
Second, there are at least 2 government decisions and several other advices to government that suggest the Commonwealth had the opportunity and probably, in one of them, was required to exercise greater control of the unprecedented and extreme bush fire situation and did not.
One recent opportunity to exercise control is cited here. Then there is this reminder that successive governments have known since 2008 (the Garnaut Report) that bush fires would be happening out of season and getting more extreme.
Commonwealth “in control” but dodging the action
However, just recently, an AFR journalist pointed to the Commonwealth’s government non action on the regular National Disaster Risk Management Report that is produced in the Department of Home Affairs. This 2018 report alerted the government to significantly increased bush fire risk (and other risks) and made recommendations on actions that should be taken. The report cites a number of advices to government about the action it could take to be in control of the situation.
I have included extracts from this report as a separate addendum at the end of this commentary.
This report clearly establishes that the Commonwealth government has significant control over and responsibility to reduce and prevent extreme bush fires and consequent bush fire smoke.
The report should at least have been circulated to all Commonwealth government agencies, and possibly more widely to at least state and territory governments. There is no evidence at this stage that the government took this step.
If it can be established that the Commonwealth, starting with the minister responsible (Peter Dutton), did not act properly on the report, we have a situation where the responsibility for the employer to be in control is established but has not been taken.
In any case, it can be argued that the actual statutory requirement for the Report, and its production for the government, is indicates that the extreme and unprecedented bush fire smoke circumstances are indeed the responsibility – to one degree or another – of the Commonwealth as an employer.
And, thus, Commonwealth government employers cannot have access to the stand down provisions at s. 524., especially to stand down workers without pay or by forcing them to use annual leave or long service leave accruals.
In any case, there is no clear or workable remedy for workers who are wrongfully stood down under this section of the Act. There might be some connection between a s. 524 breach and the heavily regulated and complicated “General Protections” sections of the FWA09.
Workers have to pay for circumstances beyond their control but not the employer.
From a union point of view this is clearly not acceptable.
Much of this is relevant also to workers’ rights regarding bush fire smoke as established in the WH&S Acts. We will focus on this in a forthcoming commentary.
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“However, with the driver of a changing climate there is growing potential for some natural hazards to occur at unimagined scales, in unprecedented combinations and in unexpected locations. …
“We are better positioned now than ever before to take a comprehensive approach to addressing the causes of disaster risk, rather than only dealing with the symptoms. We can give urgent priority to this sophisticated program of work. This will ensure Australian communities can endure more frequent and intense natural hazards. It will also ensure Australian communities can thrive and prosper following these events.
“Responding to these opportunities and challenges, the National Disaster Risk Reduction Framework outlines a national, comprehensive approach to proactively reducing disaster risk, now and into the future.
… Sendai Framework … “… strengthening disaster risk governance to manage disaster risk; investing in disaster risk reduction for resilience; and enhancing disaster preparedness for effective response, and to ‘Build Back Better’ in recovery, rehabilitation and reconstruction. …
“While individuals and communities have their roles to play, they do not control many of the levers needed to reduce some disaster risks. Governments and industry in particular must take coordinated action to reduce disaster risks within their control to limit adverse impacts on communities.” …
“over the past 10 years disasters have cost the Australian economy around $18billion per year. Assuming current development patterns and population growth continue, this is forecast to reach $39 billion per year by 2050. This forecast does not account for the effects of a changing climate, which are expected to magnify these costs; …
“The Australian Prudential Regulation Authority and Australian Securities and Investment Commission have stated that climate-related physical and economic transition risks are foreseeable ….
“Climate change can increase disaster risk in a variety of ways, including by altering the frequency and intensity of natural hazards, affecting vulnerability to natural hazards, and changing exposure patterns. These impacts are outlined in reports such as the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (2014), the National Climate Resilience and Adaptation Strategy, and Bureau of Meteorology/ CSIRO State of the Climate 2018 Report.