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Unions lose sick pay appeal against Qantas despite cancer victim plea

written by Adam Thorn | November 27, 2020

A consortium of unions have lost an appeal to allow Qantas workers, including a 30-year veteran undergoing cancer treatment, to claim sick leave while stood down.

Federal Court Justice Steven Rares and Justice Craig Colvin agreed with an earlier ruling and said it would be “paradoxical” to allow employees to claim time off work during a period when no work was able to be carried out.

Significantly, the case highlighted the plight of a man with 35 years’ service awaiting a triple bypass alongside another man battling cancer.

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The TWU, one of the organisations who brought the claim, said the ruling was a “slap in the face” for a company “with a CEO who earned $24 million”.

“The ruling will devastate these workers, many of whom are battling serious illness and are struggling to pay bills and support their families,” said national secretary Michael Kaine.

The cancer sufferer, who has asked to remain anonymous, first began working for the airline in 1989 and was due to start seven weeks of treatment on 5 April.

He earlier said the decision to deny him the leave, which he had already accrued, has caused stress to both himself and his family.

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The second employee mentioned is on a waiting list for a triple bypass heart surgery, and has also accrued enough to cover his absence. He started his service with Qantas in late 1984, and claims to have rarely been unwell in that time.

Qantas defended its position arguing that employees stood down do have access to JobKeeper, annual leave and long service leave.

“COVID-19 and border restrictions have meant the majority of our employees have had no work for months,” it said in a statement. “The company has taken on more than $2 billion dollars in debt as revenue has collapsed. It’s been an incredibly difficult time for everyone.

“We understand that some employees will be disappointed today, but there’s now been two courts who have confirmed that employees who are stood down are not eligible to receive paid sick leave because there is no work to be absent from. This is not just true of Qantas, but across the economy.”

The original ruling in May stated, “It is the very characterisation of the leave entitlement conferred by s 96 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.”

Earlier this week, Qantas and Jetstar said its flying schedule will rebound to 60 per cent of pre-COVID levels and it would add an extra 1,200 return flights following Queensland’s decision to open to Sydney and Victoria. The news will mean many stood-down workers will return to employment.

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9 Comments

  • Steve A

    says:

    Sickening. There is no Spirit of Australia left in Qantas.

  • Nicholas

    says:

    Honestly, I think these two learned Judges are living in lala land.

    No appreciation for the acceptance of reality, this is they have earned and accrued the leave.

    Does that mean if my place of work has a quiet week I can’t take sick leave then for a necessary medical procedure???

  • Adrian P

    says:

    from this web site https://www.fairwork.gov.au/leave/annual-leave/payment-for-annual-leave
    If an employee is sick or injured while on annual leave, the employee can use their paid sick or carer’s leave entitlement instead of using their annual leave.

    The employer can still request the employee provide notice and evidence when taking sick or carer’s leave while on annual leave.

    An employer can’t direct an employee to take annual leave while they’re taking sick or carer’s leave.

    Source reference: Fair Work Act 2009 s.89 external-icon.png

    So is an employee on annual leave in a no work rostered situation? If so then rostering has no bearing on payment of sick leave.
    Also if the employer is currently paying annual leave to an employee who is not rostered (due to covid) and then
    the employee goes sick, then s.89 should apply.

  • Vannus

    says:

    When the unions’ first ventured taking QF to Court over stood-down time sick leave, I said at that time that the unions’ would not win, & so it has come to pass.
    This is the second time in a short period of months’, that unions’ have got on their wrongly implemented ‘high horse’ to face off against QF, & lost.
    They’ll not learn whilst they use other persons’ monies’.

    They’ve wasted so much of their members’ subscription funds’ trying to beat QF.
    Their bosses’ should be made to pay back these wasted amounts into their members accounts, but, of course, that won’t happen. And if the bosses’ monies’ were used towards court costs, it wouldn’t have happened in the first place. It’s so easy using others’ $$$$.

    The unions’ are a disgrace in every sense of the word, & it’s no wonder working folk have deserted them in droves’, over the past few years’.

  • Joyce has stood up for the LGBT, indigenous and climate change. Leave him alone.

  • Alison

    says:

    Take the annual leave or long service leave……… then apply for sick leave as you were sick (provide certificates) and have the a/l, lsl reversed.

  • Alison

    says:

    Take the annual leave or long service leave……… then apply for sick leave as you were sick (provide certificates) and have the a/l, lsl reversed and sick leave paid.

  • Warwick

    says:

    To Alison, above….

    What you suggest isn’t permitted to be done.

    Whilst an employee is in ‘stand down’ mode, ie no work available, they CANNOT access Sick Leave. That is the Federal Law, by which all workplaces’ must abide.

    They’re legally permitted to take LSL or AL, but once these days’ run out, that’s it.

    Why is this rule so difficult for people to understand? It’s well laid out in any Company’s work guides’. Read them!

  • Nicholas

    says:

    To Nicholas, above @ 6:27pm 27-11-2020….

    You unfortunately have missed the point, by a very wide margin.

    The judges’ MUST apply the Federal law which states that a worker who has been ‘stood down’ by their employer, due no work available to be done, in this instance, caused by COVID-19, CANNOT access Sick Leave, as there’s no work to be sick from. That’s the reality.
    The fact that an employee may have accrued Sick Leave, is irrelevant in THIS case.

    There is a big difference between being a ‘stood down worker’ & a worker under a normal situation. A ‘stood down’ worker comes under vastly different rulings.

    It has nothing to do with a work environment having a ‘quiet week’.

    The key words in the legislation are: ‘STOOD DOWN employee.’
    Maybe you should read some ER & IR rule books, before you write/say totally erroneous information, in the future.

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