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No sick leave for stood-down workers, court rules

Stood down employees are unable to access their paid personal leave.
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No sick leave for stood-down workers, court rules

No sick leave for stood-down workers, court rules

1 June 2020

By Mike Toten

Employees who are stood down due to COVID-19 can access their annual and long service leave entitlements, but they are unable to access paid personal leave entitlements. The latter include sick leave, carer’s leave and compassionate leave.

The Federal Court has rejected an application by unions for stood-down Qantas employees to have access to those entitlements.

The court’s (and Qantas’) logic was that if employees were not earning any income due to not working, there was no work to be absent from, and no income to protect. Protection of income is the main purpose of personal leave.

Unions have since called on Qantas to exercise its discretion and voluntarily allow access to personal leave.


Facts of case

Qantas stood down about two-thirds of its workforce. It allowed them access to annual leave, long service leave and parental leave entitlements while stood down, including the options of taking leave without pay and leave at half pay. But, arguing that there was no work for employees to perform, it refused to continue paying sick leave, carer’s leave or compassionate leave to employees who were receiving them.

Three unions lodged a dispute in the Federal Court, claiming that sec 525 of the Fair Work Act 2009 prevented an employer from stopping these payments during a stand-down, although it could still cease paying wages. They claimed that sec 525 meant that an employee was not regarded as being stood down while he/she was taking approved paid or unpaid leave, because the employer had “authorised him/her to be absent from work”. They also claimed that employment agreement clauses implied that employees were entitled to continue receiving the payments.

The unions cited case studies of employees who were suffering serious illnesses and whom it claimed were severely disadvantaged by the lack of access to payments.


Decision

In upholding Qantas’ position, the court said that the leave entitlements were a form of income protection that required the employee to be receiving work income at the time. If there was no work to perform (and to be relieved from performing) and therefore no work income, there was no income to protect and no income lost due to the employee requiring leave.

The provisions were intended to protect employers against having to pay out as well as to protect employees, and the content of sec 525 did not change that situation. Section 525 instead covered authorised absences such as public holidays, jury service and eligible community service activities (eg emergency services leave).

Further, the employment agreement provisions were consistent with the Fair Work Act.

The bottom line: The court has clarified that, when employees are stood down, they can access their annual and long service leave entitlements, but not their paid personal leave entitlements. This is because the latter are regarded as income protection measures, but in a stand-down situation there is no work available and therefore no income to be earned and “protected” and the employee does not have to be “authorised” to be absent from work.


Read the judgment

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Ors v Qantas Airways Limited [2020] FCA 656, 18 May 2020

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