News
Supporting volunteers and ADF Reservists responding to emergencies
Monday January 13, 2020
With fires raging across the country and the recent announcement of the deployment of 3000 ADF reservists to assist with the bushfire recovery, it is timely to consider an employer’s obligation vis-à-vis employees who may be enrolled as ADF reservists or volunteers carrying out an emergency management response.
In Western Australia the two relevant pieces of legislation are the Emergency Management Act 2005 (WA) (“the EM Act”) and the Defence Reserve Service (Protection) Act 2001(CTH) (“the DRSP Act”).
Although the main objective of the EM Act is to provide for the emergency management arrangements for the State’s emergency services, it also has as one of its objectives the protection for volunteers.
Specifically the EM Act provides that where a volunteer (i.e. as a member of an emergency management agency) carries out an emergency management response which requires them to be absent form their paid employment, the employer is obliged to continue to pay the employee their normal pay and entitlements during such absence. This includes the accrual of all leave and other benefits which the employee would otherwise have accrued if they had attended work. The EM Act further provides specific protections of volunteers against victimisation by an employer. Victimisation may occur where an employer dismisses the employee, alters their position, refuses to promote them or otherwise denies them entitlements because of the employee’s absence whilst carrying out an emergency management response. It is noteworthy that an emergency management response does not include an activity which involves the prevention of, preparedness for, or recovery from, an emergency.
Although there is no legal obligation on employers to pay ADF reservists while they are absent on Defence Service, including training, employers are by law required to release the employee Reservist from work, and to continue to employ them on their return. Reservists are also protected against discrimination, disadvantage or dismissal from work by reason of their association with the Defence Service. Employees may by agreement access their paid leave entitlements, but must not be required to do so. Employers may also be eligible for financial assistance (capped at the average weekly earnings rate) to offset the costs of releasing employees for Defence service, through the Employer Support Payment Scheme.
Breaches by employers under either legislation may be prosecuted and carry heavy penalties if proven. To avoid misunderstandings and inadvertent breaches, it is advisable for employers to have a policy in place which provides that employees should identify themselves if they have a particular association with a State emergency service or as a defence reservist which may require their absence from work, and remind employees to provide as much notice as possible of any such absence to their employer.
