I’ve written on employment protection, and the lack of income protection for volunteers in NSW – see Volunteer employment protection during current fires – NSW (November 15, 2019). A volunteer cannot be victimised for responding during a declared state of emergency, but their employer is not obligated to pay them for their time off work. We do know that the Prime Minister has announced that Commonwealth employees will be given 4 weeks paid emergency service leave (Jack Snape ‘Prime Minister Scott Morrison says volunteer firefighters with public sector jobs will get four weeks’ paid leave’ ABC News (Online) 24 December 2019). That is a decision by the Commonwealth as employer rather than Commonwealth as the government. The Commonwealth as employer can make that decision as can any employer. Whilst it sets an example it does not compel any other employer to do the same.
With that background a correspondent has drawn my attention to a publication by the West Australian Department of Fire and Emergency Services (DFES) The Employer’s Guide to Employing Emergency Services Volunteers (April 2016). That publication, in turn, refers to the Emergency Management Act 2005 (WA) s 92(2). That section says:
An employee who is absent from the employee’s employment because the employee is carrying out an emergency management response is entitled to be paid by the person’s employer remuneration for the period of the employee’s absence calculated at the employee’s ordinary rate of remuneration, determined in accordance with the regulations, on the time that the employee would ordinarily have worked had the employee worked his or her scheduled work time.
Section 93 of the WA Act is similar to the NSW Act in that it provides that an employer must not ‘victimise’ an emergency service volunteer for his or her absence during an emergency. Unlike the NSW Act however it does provide a defence for the employer if the employee’s absence was ‘not reasonable having regard to all the circumstances.’
In WA therefore an employer can in effect insist that an employee is not ‘unreasonably’ absent and that will be influenced by the employee’s role in the business and how essential their attendance is. But unlike NSW a volunteer must be paid during their absence.
Here the state is shifting the cost of responding to employers and that could be a significant cost if a large proportion of the employer’s staff are volunteers (which may be the case for a large employer with lots of volunteers on staff, or a small employer who only has one staff member and that staff member is a volunteer).
There could be two views on that. On one view emergency management is a shared responsibility so that is part of the employer/business responsibility particularly where volunteers are protecting the very community where the business operates. On the other hand, it could be argued that the volunteers are providing a community benefit and so the community (via the government) should pay (see also the discussion in the post No liability for damage to grapes caused by WA hazard reduction burn (April 25, 2012)).
Either way, someone pays. Under current arrangements it’s either the employer or the volunteer but in neither NSW or WA is the state offering to meet the costs of the volunteer’s wages. That may change given the current debate during the extended 2019-2020 fire season.
Most states and territories have employment protection provisions similar to the NSW legislation though they do not require a formal declaration of an emergency or that the employment protection provisions apply. The exceptions appear to be Queensland and Victoria. For the relevant provisions see:
- Emergencies Act 2004 (ACT) s 183;
- Emergency Management Act 2013 (NT) s 114;
- Emergency Management Act 2004 (SA) s 33; and
- Emergency Management Act 2006 (Tas) s 57.
The obligation to keep paying volunteers appears to be unique to Western Australia.
I thank my correspondent for drawing the Emergency Management Act 2005 (WA) s 92(2) to my attention.