Can employees use paid sick leave entitlements while stood down for COVID-19?

Can employees use paid sick leave entitlements while stood down for COVID-19?

Recently, the ABC reported that Qantas is refusing to allow its 20,000 staff stood down due to the coronavirus crisis to use their entitlements to paid sick leave. This was stated to apply even to employees who were already on paid sick leave prior to the imposition of the stand-downs.

ABC News indicated it was ‘aware of Qantas employees who fear they may have been exposed to coronavirus and will be left without paid sick leave if they get sick’.

Sure enough, there was a breakout of coronavirus cases among Qantas baggage handlers at Adelaide airport last week.

Qantas’ position is that employees who have been stood down cannot take sick leave from work in circumstances where there is no work. However the airline says employees can access their annual leave and have access to future annual and long service leave entitlements.

This would have been the only way employees could continue to be paid during stand downs, prior to last week’s announcement of the Federal Government Jobkeeper Payment scheme.

The Qantas Engineers Alliance Unions have filed Federal Court proceedings seeking to challenge the airline’s decision on sick leave during stand downs. The AWU’s National Secretary Daniel Walton argued that workers ‘cleaning potentially contaminated planes to make them safe’ for future flights ‘could contract COVID-19 before being stood down, and yet Qantas is refusing to pay them sick leave’.

This is an issue that affects many employees and employers at present, not just Qantas.

 

So what is the legal position?

Stand down rules

The stand down provisions of the Fair Work Act state that, where an employee is stood down because of a stoppage of work beyond the employer’s control, ‘the employer is not required to make payments to the employee for that period’ (section 524(3)).

An employee is not taken to be stood down if the employee ‘is taking paid or unpaid leave that is authorised by the employer’ or is on another authorised absence from employment, such as annual leave (section 524(4)).

Sick leave entitlements

The right to take sick leave forms part of the National Employment Standards, specifically ‘paid personal/carer’s leave’, in the Fair Work Act. This entitlement accrues at the rate of 10 days for each year of an employee’s service with their employer (sections 95-96).

An employee may take paid personal leave (i.e. sick leave) when ‘the employee is not fit for work because of personal illness, or personal injury, affecting the employee’ (section 97(a)), and this is supported by medical evidence.

 

Conclusion: sick leave is available to stood down employees

The interaction between the stand down and sick leave provisions of the Fair Work Act is not clear. However, I think the better view is that an employee is able to access paid personal leave while stood down.

Qantas’ argument involves a narrow approach to interpreting section 97(a) – an employee cannot be unfit ‘for work’, when there is no ‘work’ happening as a result of stand downs.

Yet the airline is allowing employees to use annual leave entitlements while stood down, even though the purpose of annual leave – rest and recreation – is hardly being fulfilled for the many 1000s of Australian employees currently stood down and subject to employer-mandated use of their annual leave accruals.

Qantas is adopting an opportunistically technical approach to this issue, with a particularly harsh impact on those already on long-term sick leave prior to the stand downs taking effect.

Essentially the airline is saying that a perversion of annual leave entitlements is tolerable (when it’s in the interests of business), but we simply won’t allow any use of sick leave that in our view doesn’t meet the strict requirements of the Fair Work Act (which may not be correct).

The Federal Court’s ruling in the Qantas case is going to be critical for many businesses and workers. In the meantime, there’s nothing to stop an employer granting employees access to paid sick leave while stood down if there is a legitimate medical basis for the employee to take such leave.

Further arguments in support of the position that sick leave applies during stand downs are provided in a longer version of this article on Anthony’s blog

 

Anthony Forsyth, Graduate School of Business and Law

21 April 2020

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21 April 2020

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