Unions fail in Qantas coronavirus sick leave bid

Qantas’s decision to deny workers access to sick leave while they are stood down during the coronavirus pandemic has been upheld.

Qantas workers who have been stood down will not be able to access sick leave.

Unions have failed to overturn a Qantas decision to deny workers access to sick leave while they are stood down during the coronavirus pandemic.

A 30-year Qantas veteran enduring radiotherapy treatment for cancer was among a group of workers backing the Federal Court bid to reverse the airline’s decision to deny them access to their accrued sick leave.

Justice Geoffrey Flick on Monday rejected the application by a number of unions, finding that the denial of sick leave to the stood down workers was allowed under the Fair Work Act.

“At the very heart of the ultimate conclusion, namely that an employee cannot access such leave entitlements whilst stood down, is the determination that such leave entitlements are an entitlement on the part of the employee to take leave from otherwise performing the work they are required to perform,” he said.

Justice Flick said the leave entitlement was characterised under the law as a “form of income protection” which presupposes that an employee is in receipt of income.

“As Qantas has repeatedly submitted, and correctly so, “‘income’ is not being protected if there is no available or required work from which to derive income in the first place”, he said.

Justice Flick said in circumstances where an employee has been lawfully stood down, and there is no work which the employee can perform and thereby derive income, an employee is not entitled to access leave entitlements conferred by the Fair Work Act.

“To enable the employee to do so would go against the very object and purpose of conferring those entitlements – namely an entitlement to be relieved from the work which the employee was otherwise required to perform,” he said.

“If there is no work available to be performed by the employee, there is no income and no protection against that which has not been lost.

“Conversely, to expose the employer to a liability to pay leave entitlements after lawfully having invoked the power to stand down an employee would defeat one of the two principal purposes of standing the employee down – namely, to protect the employer against such claims.”

The Transport Workers said it was looking to appeal the court decision as workers affected included a man battling cancer and another awaiting a triple bypass both with over 30 years work at Qantas.

“The ruling is bitterly disappointing for Qantas workers battling serious illnesses and their families, who are enduring worries about their finances at a difficult time in their lives,” the union’s national; secretary Michael Kaine said.

“This is about justice and the fact that workers who are battling serious illnesses should be allowed to draw down the significant sick leave they have accrued through years of hard work at Qantas.”

Australian Workers Union national secretary Daniel Walton said it was “absolutely shameful that during this crisis Qantas is putting corporate greed over worker welfare and refusing to let its workers access their sick leave,”.

“Qantas workers have been distressed by their inability to access their personal leave entitlements while on stand down,”’ he said.

“One worker who made a submission to the court has heart failure and cannot access sick leave, another can't use his carers leave to look after his wife who had a stroke and their six-month-old baby. Just imagine the stress they are under. For workers like these and many others, this decision will be a bitter disappointment.”

A Qantas spokesman said the court had confirmed that employees who had been stood down were not eligible to receive paid sick leave “because there is no work to be absent from”.

“Employees can still access annual leave, long-service leave and other support including the government’s JobKeeper payments,” the spokesman said.

Electrical Trades Union national secretary Allen Hicks said stood down Qantas workers were able to access annual leave or long-service leave during the stand-down period.

“Yet Qantas has denied workers access to other forms of leave, including sick leave,” he said.

“This means workers who have been unable to work due to illness of injury have been left stranded without an income. We believe this is both unfair and illogical.”