I have often been asked about employment protection for volunteers. The Fair Work Act 2009 (Cth) s 772 says an employees employment must not be terminated due to ‘temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.’ Voluntary emergency management activity means, amongst other things, responding as a member of ‘an emergency management body’ in circumstances where the member has been asked to respond or if no formal request has been made, it is reasonable to assume that the request would have been made if circumstances permitted. An emergency management body would include all the traditional emergency services such as the volunteer fire brigades and State Emergency Services (see s 109). That’s a long way of saying you can’t be sacked for responding as a member of an emergency service in circumstances where that is reasonable. The Fair Work Act is a Commonwealth Act and so will apply across Australia. Employment law is not my field, but from what I can see the remedy, if you are sacked, would be to bring proceedings with Fair Work Australia (see s 773 to 783) which could take time and may or may not lead to you getting your job back.
In New South Wales, the State Emergency and Rescue Management Act 1999 (NSW) s 60B says:
An employer must not victimise an employee of the employer for being absent if the absence was due to the employee taking part in emergency operations as a member of an emergency services organisation and the absence occurred while this Part applied to the operations (pursuant to an order of the Premier under this Part).
Victimise means much more than just dismiss.
An employer victimises an employee if the employer:
(a) dismisses the employee from employment with the employer or terminates the engagement of the employee by the employer, or
(b) alters the employee’s position in his or her employment with the employer, or alters the circumstances of the employee’s engagement by the employer, to the employee’s prejudice, or
(c) otherwise injures the employee in his or her employment with, or engagement by, the employer. (s 60C).
In other words it is unlawful, in NSW to sack or otherwise adversely alter the terms of a person’s employment because they were on emergency service duty. These provisions only apply, however, if the Premier has issued a declaration (s 60D) saying that the provisions apply to the current emergency. With widespread flooding across NSW, and many volunteers responding to help their community, the NSW SES is reporting that the Premier has in fact issued that declaration; see NSW Government acts to protect emergency volunteers.
With that declaration in place, any employer who victimises an emergency service volunteer commits a criminal offence (s 60B) with a maximum penalty of $3300 (s 60B and Crimes (Sentencing Procedures) Act 1999 (NSW)s 17, which provides that in NSW a penalty unit is worth $110. Compare that to Queensland where a penalty unit is $100 – see my earlier post, ‘Man jailed over fatal drive through floodwaters’). If the employer is convicted the Court may also order the payment of compensation, that the employee is reinstated and various other remedial orders (see s 60F). I have not heard of any NSW employees being victimised because of their decision to help the community as volunteers, but at least those that are responding to the current emergency have, with the Premier’s declaration, added protection under the State Emergency and Rescue Management Act 1999 (NSW).
Michael Eburn
8 March 2012
Australian Emergency Law 
Michael, Premier O’Farrell has issued a declaration under SERM of a natural disaster. A copy is available from the NSW RFS site http://www.rfs.nsw.gov.au.
Michael, in NSW does “victimise” include not paying employees who take emergency service leave?
SCliffe – that’s a good question; I don’t have an authoritative reply. The relevant paragraphs are that victimisation occurs if the employer:
(b) alters the employee’s position in his or her employment with the employer, or alters the circumstances of the employee’s engagement by the employer, to the employee’s prejudice, or
(c) otherwise injures the employee in his or her employment with, or engagement by, the employer. (s 60C).
Not being paid, on days when you are not at work, would not appear to be ‘altering’ the employees position or the circumstances of their employment nor is it injuring them in their employment, that is the actual terms of their employment.
In short, these paragraphs relate to the terms of a persons employment so their tenure, their job description, pay scale etc. I don’t see how not paying a person but keeping their job open would run foul of these paragraph. The employer may allow the employee to take some sort of paid leave whether that’s annual leave, emergency services leave if they have it, personal leave etc; but if there is no relevant leave or the volunteer doesn’t want to take annual leave, then based purely on the wording of the Act, and without reference to any relevant case law, I would think that ‘victimise’ does NOT include not paying employees who are absent from work on emergency services duty.
You’ll not I’ve used different wording to the question, that is if the employer has ’emergency service leave’ you would have to look at the terms of the leave. My former employer had paid emergency services leave, so it would certainly be victimisation not to have paid me as that would have been breaching or changing the terms of my employment contract. If another employee has unpaid emergency services leave, then it would also not be victimisation as, again, the employee is not being injured in their employment, their employment contract is being applied. The more difficult question is where there is no formal emergency services leave, so the employer has to decide, when the situation arises, whether or not the employee is to get paid. As concluded above in that case I don’t see that allowing or requiring the employee to take leave without pay would be victimisation.