Another question arises out of the current storms that have been keeping the NSW SES busy.  This correspondent says:

With the severe hailstorms which lashed parts of Sydney in mid-December, the Commissioner of the NSW SES issued the attached Order intended to protect the employment of volunteers who choose to leave work to assist in the response and recovery efforts.

The Orders specifically state that they are enacted for a minimum of 48 hours, but can be extended (but, if they are extended, that is not communicated as readily, or able to be checked by members), but the Operations, at this point have been going for weeks, leaving me feeling that the Orders serve no real purpose.

In addition, the Section referred to in the Order is worded to protect members from “victimisation”, but I don’t see how that can be practically proven or applied to most members. At best, I could see how a full time employee could not be terminated in circumstances where their involvement in an emergency response could reasonably be seen as a factor in that decision, but with more people working part time, casual, on contract, or self-employed (so working for external clients). I see plenty of opportunities for employers to simply reduce hours/shifts/projects or choose not to engage that person further.

So, my short questions:

  1. How hard is it to prove victimisation has occurred based on an employee’s involvement with a volunteer emergency service or incident response?
  2. Have any cases tested this legislation? What were their outcomes?
  3. Does this Order practically protect members under all employment types, or are some employment types impractical to protect?
  4. Do the limited timeframes of these Orders mean that someone dismissed before the start date/time is unprotected?
  5. Do these Orders really have any practical value in ensuring that volunteers will not suffer losses in terms of employment or earnings when they choose to give their time to assist the community?

Might be too wishy-washy in the questions, but any insight you can provide would be appreciated. At the moment, the fact that these Orders are issued haphazardly over Operations much longer than their timespan, and the wording of the Legislation, leaves me feeling this is, at best, lip service protection, or internal propaganda.

employment order Dec 2018

I have previously written on orders made under the State Emergency and Rescue Management Act 1989 (NSW) s 60B – see:

In those earlier posts I did say that an order had to be signed by the Premier.  If you look at the current order you will see that it has been signed by the NSW SES Commissioner.  That is because of amendments to the Act that came into effect on 7 December 2018 (see Emergency Services Legislation Amendment Act 2018 (NSW) s 2(2)).   As a result of those changes the Premier or the Commissioner or a Deputy Commissioner of the NSW Rural Fire Service or the State Emergency Service can make an order specifying operations that are covered by s 60B (State Emergency and Rescue Management Act 1989 (NSW) s 60D).  Where a Commissioner or Deputy Commissioner makes the order, it is valid for not more than 48 hours.  Where the order is made by the Premier is remains in force ‘for the period specified in the order unless revoked earlier’.

Where an order is made then (s 60B):

An employer must not victimise an employee of the employer for being absent if the absence was due to the employee taking part, as a member of an emergency services organisation, in emergency operations to which this Part applies.

Further (s 60C):

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.

I should note the order does not compel an employer to provide paid time off for emergency services work but see the discussion on Community Service Leave in the earlier post – Employment protection during a NSW s 44 fire – amended (February 20, 2017).

I can now turn to the questions asked:

  1. How hard is it to prove victimisation has occurred based on an employee’s involvement with a volunteer emergency service or incident response?

There is no general answer to that.  It depends on all the circumstances and how silly the employer is.  If the employer writes an email saying ‘your sacked because you’ve been on SES duty’ then it would be easy. If there are other reasons given and there is some reason to believe those other reasons are true, then it could be very difficult.

I should note that if the employee can show that his or her position has been affected then the burden to prove that ‘the defendant was not motivated by’ the employees absence ‘due to the employee taking part, as a member of an emergency services organisation, in emergency operations to which this Part applies’ falls to the defendant.  That is the defendant has to prove that they were not taking action because of the employees emergency service work, the prosecution does not have to prove that was the motivation (s 60E)

  1. Have any cases tested this legislation? What were their outcomes?

I’m not aware of any relevant cases.

  1. Does this Order practically protect members under all employment types, or are some employment types impractical to protect?

The order protects employees.  Not everyone is an employee.  My correspondent referred to ‘people working part time, casual, on contract, or self-employed (so working for external clients’.  Everyone is employed ‘on contract’ whether it is a fixed term or ongoing contract.  Casual staff who are not guaranteed hours may find themselves not being offered work and may find it hard to prove that that is because they took time off for emergency service work. Its also possible that a person on a fixed term contract may not have it renewed but showing that was because they took time during this operation would be difficult.  Persons who are self-employed are not employees.  If their customers chose not to come back to them that is their business.  Customers are not bound by these orders.

  1. Do the limited timeframes of these Orders mean that someone dismissed before the start date/time is unprotected?

Yes, they only apply for the time they apply. This order only applies from the date it was made (21 December 2018) for 48 hours.

  1. Do these Orders really have any practical value in ensuring that volunteers will not suffer losses in terms of employment or earnings when they choose to give their time to assist the community?

Probably not. An employer who is willing to penalise an employee is probably not going to be too worried about this section or if they are would make sure they phrased any correspondence in such a way as to avoid making admissions as to their motive.

If, however, the case is proved then the Court can not only impose a criminal penalty, it may also order a payment of compensation and/or that the employee is restored to their position (s 60F).