Virgin/Qantas stand down: everything staff need to know

“The Fair Work Act 2009 allows employers to stand down employees without pay when the employee cannot be usefully employed because of a stoppage of work, which the employer cannot be reasonably held responsible for (such as natural disasters),” Mangwana said.

“This only applies to staff who aren’t already on leave for another authorised reason, which is why employees are being asked to use up annual leave and long service leave entitlements first.”

She stated that individual enterprise agreements – of which Qantas has at least 50 across different divisions – could contain specific stand down provisions, including consultation obligations.

“Generally, in workforces experiencing a significant change, adversely impacted employees should be given a fair opportunity to influence their employer in advance,” she said.

“Employers should implement stand-down fairly, to avoid unnecessary costs and inconvenience to staff.

“Being stood down feels very much like unpaid leave (although it isn’t), since you remain employed, but without work or income.”

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While standing down a workforce is considered legal under the conditions outlined in the Fair Work Act, the unprecedented scale of this decision could weigh on workers in other workforces.

“Of course, this precise situation has not been tested by the courts before,” Mangwana said.

“But workers nationally may now be concerned about whether widespread stand downs will follow.”

While Mangwana stated that there is “nothing ordinary” about Qantas encouraging workers into roles at Woolworths supermarkets, she also said: “But these are unprecedented times.”

“What is obvious here is that the airline industry is having a huge drop-off in demand, while supermarket shelves are bare,” she said.

“Many people may feel that desperate times call for desperate measures, and that it is a positive step if different industries can work together in the national interest at a time like this for the greater good of society.”

The employment lawyer emphasised that all other reasonable opportunities for useful employment must be exhausted prior to stand-down, such as flexible working arrangements or taking on roles in another capacity, either within or outside of their skills and experience.

As such, it appears to Mangwana that it “makes sense” to consider the option to consider employment opportunities at another group entity.

She also stated that Qantas isn’t the only airline getting creative in providing work opportunities for stood-down staff.

“Interestingly, in Sweden, airline workers are being encouraged to take up fast-track healthcare training to form part of their fight against the virus,” she said.

However, government support is also being offered in many countries to staff suffering under industry cuts.

“National governments elsewhere are also introducing wage support for employees, including New Zealand, France, Italy, Germany, Spain and Denmark,” she said.

“The UK are also currently considering this over a temporary 12-week period. In Denmark, the government has guaranteed to cover 75 per cent of salaries, for private companies that keep staff on.”

She noted the fact that the TWU is “understandably” calling for the $715 million in federal assistance provided to Qantas to be spent on keeping staff in their roles and earning income, rather than returning it to the higher-ups.

“If that [call to spend government assistance on the workers] is unsuccessful, one possibility may be to pursue legal action to test all the details of the conditions in order to ascertain whether it is in fact a lawful stand-down,” she stated.

Mangwana mentioned a number of questions that could be challenged in court, including:

“ Has there been an absolute stoppage of work, in circumstances where the government has not directed closure?

“Are there other opportunities for staff to be usefully employed (what about maintenance work on the fleet, for example)?

“What about consultation with affected employees, and alternatives to stand down, such as special leave that might be financed by the $715 million bailout?

“And is stand-down really reasonable if the situation is not clearly temporary, but has no definite end-date in sight?”

However, in the likely event that Qantas is not taken to court over the stand-down of staff, Mangwana encouraged those staff affected to understand their current rights in this situation.

“Under stand-down, staff will remain employees, so other employment rights would continue to apply, save for the right to work, and be paid,” she said.

“You continue to accrue leave entitlements, for example.”

Mangwana stated that workers “of course” still maintain the right to hand in their own notice of termination during this time.

“Some staff, particularly those with valuable accrued entitlements, may prefer to cash these out in the current situation, and look for work elsewhere.”