Sick leave not available to stood down staff, Federal Court rules!

May 19, 2020

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On 18 May 2020, Justice Geoffrey Flick dismissed a union-led bid to have Qantas workers paid sick leave during the period of stand-down.

In mid-March 2020, 20,000 Qantas employees were stood-down in response to the coronavirus pandemic.

Since this time, these workers have been able to access some entitlements including annual leave, long service leave, and support including the Government’s JobKeeper payments, but have been prevented from accessing sick, carers, and compassionate leave.

According to the Fair Work Commission:

If an employer stands down an employee during a period in accordance with s.524 of the Fair Work Act 2009 (Cth), then the employer is not required to make payments to the employee for that period.

Section 524 is intended to relieve an employer of the obligation to pay wages to employees who cannot be usefully employed in certain limited circumstances.

The Fair Work Act also recognises a period of stand down as ‘service’. Employees will continue to accrue entitlements to annual leave and personal/carer’s leave under the National Employment Standards (NES), as well as an entitlement to a paid public holiday that falls on a day the employee has ordinary hours of work.

Important Findings

  • Qantas workers could access annual leave entitlements, but not sick, carers and compassionate leave.
  • The stand down power serves two important purposes:
    • Offering businesses financial relief; and
    • Protecting workers from termination.

Justice Flick held that allowing access to sick leave whilst lawfully stood down because there was a stoppage of work 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… If there is no work available to be performed by the employee, there is no income and no protection against that which has been lost”.

Since the outbreak, Clinch Long Woodbridge’s expert employment law team have assisted employers in navigating the stand down provisions, including advising on employee’s entitlements and employer duties during a period of stand down. Lifting a period of stand down during the JobKeeper scheme also requires careful preparation.

Contact Clayton Long clong@clw.com.au or Genevieve Hehir ghehir@clw.com.au to clarify concerns or issues affecting you.

This article is intended to be general advice only. We always recommend that you obtain advices in relation to your personal circumstances.

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