STAND-DOWN PROVISIONS AND LEAVE
STAND-DOWN PROVISIONS AND ACCRUED PERSONAL/COMPASSIONATE LEAVE
It is no surprise that stand-down provisions under JobKeeper have seen their good and bad publicity over the course of the last few weeks.
In early April, the ASU (Union) made an application to the Fair Work Commission to deal with a dispute about the illegality of Qantas refusing to pay stood-down employees their accrued personal leave. The ASU objects to this on the basis that if a worker meets the provisions of access to personal leave under the Fair Work Act / NES, then they should hence get paid for personal / carer’s leave as accrued.
The Commission, in this instance, declined to hear the case on the basis that a similar application involving multiple Unions on the same topic (and including compassionate leave) was in play with the Federal Court. The Commission rightly declined to hear the Application to ensure Court resources are used wisely across all jurisdictions.
On 18th May 2020, the Federal Court handed down their decision dismissing the application against Qantas, which alleged that Qantas had breached the Fair Work Act and it’s own industrial agreements by not paying employees both personal and compassionate leave when stood-down.
There was no question that Qantas stood down its employees lawfully on the basis of financial relief; that the employees could not be usefully employed; and on the basis of avoiding mass terminations due to COVID-19.
The Federal Court took the view that an employee cannot take compassionate/personal leave entitlements from work that is not there to perform (and hence the employee is stood-down). The Federal Court went further to say that the objective of personal & compassionate leave is “a form of income protection” as per previous case law and Section 96 (NES). Furthermore, such leave is leave from a “working day” as per a recent ruling in 2019 (Mondelez). If there is no work to perform, there is no “working day”.
The Court determined that the Unions case went against the objective and purpose of those leave entitlements as per the below:
[“To enable the employee to do so would go against the very object and purpose of conferring those entitlements – namely an entitlement to be relieved from the work which the employee was otherwise required to perform. If there is no work available to be performed by the employee, there is no income and no protection against that which has not been lost.”]
This case illustrates that whilst the Fair Work Commission, Unions and employers have worked positively together, cases will continue come before the Courts in various jurisdictions around the exceptional circumstances brought about by the pandemic.
It’s a moving beast, so be sure to engage the right experts with the right specialist background to guide you. As an aside, we suggest employers don’t rely solely on a financial or payroll expert to guide you in complex matter of employment law.
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