In March 2020 Qantas lawfully stood down 20,000 of its ground staff due to the coronavirus global pandemic pursuant to the Fair Work Act 2009 (Cth) (Act).
Section 524 of the Act provides that an employer can stand down employees from work in certain circumstances including a stoppage of work for which an employer cannot be reasonably held responsible. Where this occurs, an employer will not be required to make payments to the employee for the stand down period. The meaning of stand down is not defined in the Act but in this context essentially means that the employee is not required to perform any work and is released from their duty to be ready, willing and able to work. Section 525 of the Act provides qualifications to a stand down, including that an employee will not be taken to be stood down where they are (a) taking paid or unpaid leave that is authorised by the employer; or (b) is otherwise authorised to be absent from his or her employment..
In May 2020, the Communications, Electrical, Electronic, Information, Postal, Plumbing and Allied Services Union of Australia (CPSU) brought an action in the Federal Court of Australia against Qantas claiming that the stand down provisions should be interpreted so that an employee is not taken to be stood down when on paid or unpaid personal/carer’s leave and compassionate leave. As a result, the CPSU argued that an employee should be able to access paid personal/carer’s leave or compassionate leave during a period of stand down.
The Federal Court of Australia held that during a period of a stand down an employee is not entitled to access paid personal/carer’s leave or compassionate leave. The Court reasoned that if an employee is lawfully stood down, the circumstances in which an employee can access paid personal/carer’s or compassionate leave do not arise as the employee is not required to present for work.
The CPSU appealed this decision to the Full Federal Court of Australia (Full Court) seeking a declaration that section 525 of the Act should be interpreted to mean that a person who takes personal/carer’s or compassionate leave during the stand down is taken not to be stood down. That is, there was an ongoing entitlement to take personal or compassionate leave during a stand down or by reason of events that occur during the stand down.
The Full Court majority upheld the primary judge’s decision and found that employees require the employer’s authorisation to take paid personal/carer’s or compassionate leave. The Full Court reasoned that the qualifications in section 525 that paid leave can only be taken if it is authorised by the employer under section 525(a) were different to the exercise of an entitlement to paid personal/carer’s and compassionate leave in the National Employment Standards (NES).
Further, the Full Court held that the qualification in section 525(b) that an employee will not be considered to be stood down if their absence is ‘otherwise authorised’ refers to a circumstances where the leave is authorised other than by the employer and therefore does not apply to paid personal/carer’s leave. The Full Court found that if the CPSU’s interpretation were accepted, an employer’s power to stand down employee’s without pay would be restricted to those employees that did not have any or sufficient paid personal/carer’s or compassionate leave to access during a stand down.
The Full Court also confirmed that paid or unpaid annual or long service leave are in a different category as these are rights that do not depend on the employee justifying his or her inability to perform work in the same way as is required for personal/carer’s or compassionate leave.
The Full Court did not determine whether an employee already on personal/carer’s leave or compassionate leave prior to a lawful stand down (and running into the stand down period) could be stood down, but noted that such an employee may be in a different category because they had already “exercised an accrued entitlement to take paid (or unpaid) leave … for reasons in existence before the stand down”.
Based on this decision and failing a further appeal to the High Court, in the event of a lawful stand down under the Act, employers can be confident that they are not required to authorise and can lawfully refuse paid personal/carer’s or compassionate leave. As an alternative, employers may agree to the employee taking a period of paid annual or long service leave as it is leave of a different category.
If you have any questions about this decision or require advice about the stand down provisions of the Fair Work Act, please contact kelly.ralph@justitia.com.au.