FCW Lawyers

No sick leave payable during stand down


No sick leave payable during stand down

19  May 2020

In a landmark decision on 18 May 2020, Justice Flick dismissed two dispute applications by the AMWU, CEPU, AWU and TWU as to whether Qantas had the right to prohibit their employees from taking paid personal leave, carers leave or compassionate leave while they were stood down.  The Unions argued that s 525 meant that employees could take the paid leave entitlements.

Justice Flick dismissed this claim and made several key findings:

  • Employees cannot use these entitlements as they are protections, the leave is an entitlement instead of performing work they would otherwise be required to do. Relevantly he said there can be “no income and no protection against that which has not been lost.”
  • Use of these entitlements would defeat the purpose of stand down provisions
  • S 525(b) which describes days where employees are ‘otherwise authorised to be absent from his or her employment’ refers to jury service, public holidays and some community service activities.

Key takeaways:

  • No requirement to pay personal or carer’s leave if your employee is stood down, it is up to your discretion
  • Likewise with compassionate leave if your employee is stood down

This is likely to have a huge impact on all businesses across Australia who have had to stand down their employees, by freeing up more cashflow. More than likely the decision will be appealed, so watch this space!

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

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