Should access to personal leave be permitted during stand downs?

In brief 2 min read

On 18 May 2020, the Federal Court found that Qantas is not required to pay personal/carer's leave to employees stood down without pay during the COVID-19 pandemic.¹

How does it affect you

Businesses that lawfully stand down employees (including as a result of COVID-19) will not be required to grant employees access to paid personal/carer's leave or compassionate leave.

Background

In March 2020, Qantas stood down without pay two thirds of its employees and suspended all international flights (except for flights between Australia and New Zealand) until at least the end of July 2020.

The Fair Work Act provides an important carve-out to the stand down without pay position. Employees are not taken to be stood down if they are on leave (whether paid or unpaid) that was authorised by their employer, or if their absence from work is otherwise authorised.

Qantas refused access to paid personal leave for employees who were stood down (including those who at the time of being stood down were already accessing their accrued paid personal leave).

A number of unions disputed Qantas' position and claimed in the Federal Court that Qantas' refusal to allow employees access to personal leave during stand down breached the National Employment Standards (to access accrued paid personal/carer's leave) under the Fair Work Act. Qantas argued that as there is no 'useful work' to be performed by employees, the provisions under the Act do not apply.

While acknowledging the position is contentious, the Fair Work Ombudsman had expressed its view that employees are entitled to paid personal leave during a period of stand down.

The Federal Court's decision

The court has agreed with Qantas' position and decided that stood-down employees cannot access paid personal/carer's leave while stood down without pay. In its decision of 18 May 2020, the court agreed that paid personal/carer's leave:

• is an entitlement to 'take leave from otherwise performing the work they are required to perform', and that since they are not required to perform any work while stood down, there is no entitlement to take that leave;
• is a 'form of 'income protection' contingent upon the employee being in receipt of income'. Since there is no available or required work for which that income would be payable in the first place, that income is not protected; and
• is not an absence for which the employee is otherwise authorised to be absent from work. Rather, an authorised absence means an entitlement to be paid on a public holiday, jury service or for other eligible community service activities.

The TWU has said it is considering appealing the decision.