A consortium of unions have lost their final legal bid to allow Qantas workers, including a 30-year veteran undergoing cancer treatment, to claim sick leave while stood down.
On Friday, the High Court, Australia’s most senior court, turned down an application to hear an appeal to the earlier Federal Court ruling.
TWU national secretary Michael Kaine said he was disappointed by the decision, which he said was made on “legal and technical” grounds.
“It is a disgrace that sick workers have had to battle Qantas through the courts to use their leave while the federal government continues to pump $2 billion of taxpayers’ money into Qantas with no conditions on how it treats its workforce,” said Kane.
“There is a pattern of behaviour by Qantas management whereby it is acting immorally outside the law or on the edge of it. It is has denied sick workers their leave, misused Jobkeeper and outsourced its entire ground crew, and it has goaded workers that if they don’t like it they should take them on in the courts.
“Neither the federal government nor the Qantas board are standing up to management but workers are and they will continue to fight for their rights.”
Qantas has consistently 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 when the Federal Court reached its earlier decision. “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.”
The original ruling, in the federal court in May 2020, effectively stated employees can’t claim sick pay while being stood down because there is no work for them to be absent from.
“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,” read the ruling. “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.”
A later appeal in November also failed, as 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.
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