Qantas Taken To Court. [Archive]

Sunfish

28th Apr 2020, 07:27

Qantas is apparently being taken to court by unions over its refusal to pay sick leave entitlements while staff are stood down. I would have thought the unions have a case. I am assuming we are talking here about illness that was contracted before the stand down.

I can see the attraction here. Qantas would have a huge provision in its accounts for accumulated sick leave. If redundancy is required, the accountants can rebalance accumulated sick leave which may offset a chunk of the redundancy costs. Then of course there is the cash cost of sick leave. It almost sounds to me that if you are going to do a headcount reduction, then pick the people with large accumulated sick leave balances because reduction in the provision will partially offset redundancy payments.

Shame about the cancer and heart disease patients, but can’t be helped under modern, efficient management methods.

https://www.abc.net.au/news/2020-04-28/union-qantas-federal-court-over-stood-down-worker-sick-leave/12193662

machtuk

28th Apr 2020, 07:31

Their grubby PR dept will be working overtime now to make QF look and smell good in the publics eyes!

KRviator

28th Apr 2020, 09:15

I was wondering about this a few weeks back (https://www.pprune.org/australia-new-zealand-pacific/630671-qantas-stand-down-20-000-employees-till-end-may-7.html#post10730563)...

Qantas has told some 20,000 employees that they will not be eligible for paid sick leave — leaving staff who may have been exposed to coronavirus in financial peril.

According to Qantas' own FAQ:
Sick/carer's leave will not apply during any period of stand down, so you will continue to be stood down and will not be entitled to any sick/carer's leave payments.

But a Qantas spokesman said it wasn't possible for employees to take sick leave from work when there was no work. "Employees can access their annual leave and have early access to future annual leave and long-service leave if they have leave accrued," he said.Am I missing something? You can't take Sick leave, to be absent from work, as there is no work. But you are allowed to take Annual leave to absent yourself from work, even when there is no work.

I hope the union wins this one. There's no logic to the Qantas argument that you can use AL/LSL but not SL.

normanton

28th Apr 2020, 09:20

SecretAngel

28th Apr 2020, 10:15

I know it's pretty rare to have reason to praise Qantas HR, especially after the LH vote, but they're doing better by us than a lot of other companies. I've got two mates in other industries who are stood down without pay at all (no leave, since there's no work). And they both work for companies that still have a fair chunk of their business ticking over - just not the areas my mates are working in.

The fact that we can use annual leave, rather than going straight down to $1500, is a massive help for me and my family.

I reckon it's be the right thing to do, to let people on long term sick leave to keep claiming that. But, I'm not outraged at the idea that I can't sick leave if I get a cold or stub my toe, right now.

Pushback

28th Apr 2020, 10:22

I was wondering about this a few weeks back (https://www.pprune.org/australia-new-zealand-pacific/630671-qantas-stand-down-20-000-employees-till-end-may-7.html#post10730563)...

I hope the union wins this one. There's no logic to the Qantas argument that you can use AL/LSL but not SL.
There should be. Sick leave is for when you're sick. It is available if you genuinely need it because you are sick. If you don't get sick you don't get sick leave. Aussie work conditions are far too kind.

AmarokGTI

28th Apr 2020, 11:12

Qantas will argue that annual leave isn't required to be available during a stand down. They are only "allowing" us to take it. Next thing you know they will take it away.

They have drawn the line in the sand to stop every man and his dog become "sick" while stood down. Fair enough too. But anyone who was long term sick leave before COVID19, should be entitled to stay on it.

How can they argue that?

Fairwork Act Section 525 Quote

”Note: An employee (http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#employee) may take paid or unpaid leave (for example, annual leave) during all or part of a period during which the employee (http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#employee) would otherwise be stood down under subsection (http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s26.html#subsection) 524(1).”

blubak

28th Apr 2020, 22:00

I was wondering about this a few weeks back (https://www.pprune.org/australia-new-zealand-pacific/630671-qantas-stand-down-20-000-employees-till-end-may-7.html#post10730563)...

I hope the union wins this one. There's no logic to the Qantas argument that you can use AL/LSL but not SL.
Why would there ever be logic involved in their decisions.
It is the world according to QF,very easy to tell everyone they care but when push comes to shove,words mean nothing.
I really dont know how these decision makers sleep at night,they dont care about anyone except themselves.

Keg

28th Apr 2020, 22:28

Apart from the emotion of this being cancer treatment, I’m wondering if the TWU really have a case here?

Let’s take a far less emotional example. Let’s say back in February a pilot needed a knee or shoulder reconstruction. It’s going to be 9-10 weeks sick leave. Surgery done and on sick leave that is due to expire mid April. Stand down notices due lack of work take effect from the beginning of April. Does that pilot get the extra two weeks sick leave whilst all their colleagues are stood down due to lack of work? What if one had an URTI that happened the day before the stand down commences? Should that pilot get an extra week of sick leave before commencing stand down?

I can see the company’s point here. Sick leave is when you can’t be at work. If there’s no work then you’re stood down. In the pilot’s LHEA it says that whilst stood down the pilot may ‘elect to take accrued annual leave entitlements’. That’s not quite the same as being on annual leave with all the things that flow from that.

And perhaps too the company has drawn a hard line on this because they know how many people have rorted the sick leave entitlements over the years. Clearly this cancer patient isn’t but if they make the exception for them, expect someone else to be onto the precedent and taking it for whatever ill it is that they decide they can burn 6 months sick leave for.

normanton

28th Apr 2020, 22:41

How can they argue that?

Fairwork Act Section 525 Quote

”Note: An employee (http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#employee) may take paid or unpaid leave (for example, annual leave) during all or part of a period during which the employee (http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#employee) would otherwise be stood down under subsection (http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s26.html#subsection) 524(1).”
Hmm ok looks like I got that wrong.

I vaguely remember them saying in a webinar that there is no requirement for them to offer annual leave during stand down. But the Act and LH EBA says we can.

Vindiesel

28th Apr 2020, 22:54

Hmm ok looks like I got that wrong.

I vaguely remember them saying in a webinar that there is no requirement for them to offer annual leave during stand down. But the Act and LH EBA says we can.

No, you were right.

Section 525 doesn't apply to mainline pilots because they aren't stood down in accordance with section 524(1). Have a look at section 524(2) to see why.

normanton

28th Apr 2020, 23:19

But the LH EBA states "the pilot may elect to take any accrued annual leave entitlements during the stand down period". 15.6.9

?

Vindiesel

28th Apr 2020, 23:22

But the LH EBA states "the pilot may elect to take any accrued annual leave entitlements during the stand down period". 15.6.9

?

Correct. But isn't this thread about personal leave?

normanton

28th Apr 2020, 23:28

I was correcting what I said earlier....

Qantas will argue that annual leave isn't required to be available during a stand down. They are only "allowing" us to take it. Next thing you know they will take it away.

normanton

28th Apr 2020, 23:43

Correct. It specifically states annual leave and makes no reference to Long Service Leave. I think you might be mixed up with that they don’t need to offer us LSL and this was stated in the webinars. That aside, LSL is still a liability that they would like to remove from the balance sheet, so offering us LSL is a win/win.
Ah right got it.

If they want to save cash, it would be in their best interest to deny it though.

Iron Bar

29th Apr 2020, 00:45

normanton

29th Apr 2020, 01:07

Interesting that AIPA isn't involved.

neville_nobody

29th Apr 2020, 01:30

Let’s take a far less emotional example. Let’s say back in February a pilot needed a knee or shoulder reconstruction. It’s going to be 9-10 weeks sick leave. Surgery done and on sick leave that is due to expire mid April. Stand down notices due lack of work take effect from the beginning of April. Does that pilot get the extra two weeks sick leave whilst all their colleagues are stood down due to lack of work? What if one had an URTI that happened the day before the stand down commences? Should that pilot get an extra week of sick leave before commencing stand down?

I can see the company’s point here. Sick leave is when you can’t be at work. If there’s no work then you’re stood down. In the pilot’s LHEA it says that whilst stood down the pilot may ‘elect to take accrued annual leave entitlements’. That’s not quite the same as being on annual leave with all the things that flow from that.

And perhaps too the company has drawn a hard line on this because they know how many people have rorted the sick leave entitlements over the years. Clearly this cancer patient isn’t but if they make the exception for them, expect someone else to be onto the precedent and taking it for whatever ill it is that they decide they can burn 6 months sick leave for.

Problem with your argument is that you can take annual leave and then replace it with sick leave if you get sick. So the fact that you don't have any work on is irrelevant.
It's just that lowering the annual leave balance has a benefit to the company while sick leave does not, which I would suggest is why QF are doing it.

dragon man

29th Apr 2020, 02:46

The historical and continuing rorting of sick leave and loss of license is absolutely a part of Qantas taking this position.

- Some notable over 65.

- Elective surgery and medical leave arranged over holidays.

- Long term opportunistic malingering.

Those in genuine need, sadly now penalised. If TWU win this, will be interesting to see if the honest majority lose out. Someone will have to pay for the rorts.

You wouldn’t of course be referring to the over 65 who was sent to a company specialist who said to him how have you kept flying with this for so long plus the fact that his DAME wouldn’t sign off his renewal. Can’t let the facts get in the way of a good story can we.

Keg

29th Apr 2020, 04:03

Neville. I’m not on AL at the moment. I’m stood down. I can elect to be paid my annual leave entitlements in lieu of being stood down unpaid. A subtle but important distinction.

Interestingly the pay slip refers to this also showing SU $0 and then AL credit hours with the $$$ figure beside them.

Even if a pilot was supposed to be on Annual leave when all this started they still got a stand down notice. That then also triggers the inability to schedule the surgery or otherwise be sick for your leave and thus take sick leave and get the annual leave re-credited.

KRviator

29th Apr 2020, 04:13

Problem with your argument is that you can take annual leave and then replace it with sick leave if you get sick. So the fact that you don't have any work on is irrelevant.
It's just that lowering the annual leave balance has a benefit to the company while sick leave does not, which I would suggest is why QF are doing it.That's exactly why they're doing it - under the guise of being beneficial to the employee group. "You can take your AL/LSL now and not lose $$ during the stand down......"

The KRviatrix is an accountant and everything to them is an "Asset" or "Liability". Employees are Liabilities because they (eventually) cost money. Accrued leave is a liability because it has to be paid eventually, and budgeted for accordingly. AL/LSL goes up at the %-age of your EBA increases and thus, becomes more valuable (to us) and more expensive (to them) if you don't take it year onyear. Let's say you have 1000 hrs AL owing, at $100/hr for round figures. Your AL liability to the company is, $100,000. But if you don't take that this year, then next year, that liability becomes $102,500 (or whatever %-age your EBA increase is), so of course the company - any company - wants you to use your AL/LSL as soon as you can.

But, if you don't take your AL/LSL, you're eligible for the $1,500/FN payment, which is enough to live on for most people if you can suspend your mortgage as well as keeping your accrued leave balances. I know what I'd rather do.

mmmbop

29th Apr 2020, 04:31

Look a little further than your own industry and you'll find that Qantas isn't the only big company denying the use of Sick Leave right now.

Iron Bar

29th Apr 2020, 05:27

Not heard of that one Dragon Man. Wasn’t aware Qantas had any specialist medical staff other than Dr Ian.

dragon man

29th Apr 2020, 05:59

Not heard of that one Dragon Man. Wasn’t aware Qantas had any specialist medical staff other than Dr Ian.

They don’t, when they are not happy with the situation they can insist you see a company approved specialist at their cost, the downside being that they agree as they did in this case with the patient.

neville_nobody

29th Apr 2020, 06:03

I’m not on AL at the moment. I’m stood down. I can elect to be paid my annual leave entitlements in lieu of being stood down unpaid. A subtle but important distinction.

That will be the question for the judge, whether there is a distinction or not. From reading the fair work act I think you are probably drinking too much company Kool Aid as I don't see where there specifies a distinction. If you are taking paid leave you are on leave end of story.

An employee (http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#employee) may take paid or unpaid leave (for example, annual leave) during all or part of a period during which the employee (http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#employee) would otherwise be stood down under subsection (http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s26.html#subsection) 524(1).

In the article quoted these people sounded like they were on long term sick leave, so I don't see why that would magically stop, as it is a form of leave, just one QF don't want to pay as there is no benefit to them.

crosscutter

29th Apr 2020, 06:31

It’s unfortunately this simple.

If a workplace agreement includes stood down provisions, those provisions apply, not the FWA. Not one stood down legislation in the FWA is relevant. The only thing that matters are those EA stood down clauses.

In most QF agreements I’ve read, the stood down provisions include that annual leave may be offered. There is no mention of personal leave or sick leave. So it’s not payable. It’s one of the few instances where our agreements are worse than the FWA legislation.

I expect Qantas will win.

Keg

29th Apr 2020, 06:31

Nev, does that section that you quote apply to us given we are on an EA? Will it apply to the TWU employee? As you say Neville, a judge will decide.

Spare me the ‘Kool Aid’ accusation though. I’m just reading the relevant legislation and the LHEA and giving it a ‘best guess’ like most other contributors here. A mate who has far more legal experience flicked me a message and he disagrees with my assessment. I respect his opinion.

I hope I am wrong. I’d like nothing better than to schedule in a couple of minor procedures needed whilst things are quiet at the moment and to switch from AL to SL.

IsDon01

29th Apr 2020, 06:46

There goes that frontal lobotomy I had planned.

mince

29th Apr 2020, 09:08

Perhaps the ‘yes’ voters could use this time to have their testies re-attached 😂

itsnotthatbloodyhard

29th Apr 2020, 09:19

There goes that frontal lobotomy I had planned.

Didn’t they tell you? You already had it. :}

normanton

29th Apr 2020, 10:00

Perhaps the ‘yes’ voters could use this time to have their testies re-attached 😂
And the 'no' voters have a brain installed.

Sunfish

29th Apr 2020, 10:34

IsDon01: There goes that frontal lobotomy I had planned.

What about the (Ahem) gender reassignment surgery?

Keg

18th May 2020, 01:32

Looks like Qantas won this one. (https://australianaviation.com.au/2020/05/breaking-qantas-wins-sick-pay-case-brought-by-veteran-cancer-employee/?utm_source=flash&utm_medium=email&utm_campaign=18052020). :(

Vindiesel

18th May 2020, 01:42

Court dismisses stood down Qantas staff's sick leave bidA Federal Court judge has dismissed a union-led bid to have Qantas workers paid sick leave during the coronavirus crisis.

Some 20,000-odd Qantas workers stood down in mid-March have been able to legally access some entitlements including annual leave but they've been prevented from accessing sick, carers and compassionate leave.

The company's position on Monday was backed by Justice Geoffrey Flick.

He agreed with Qantas that the stand-down power served two important purposes: offering businesses financial relief and protecting workers from termination.

Allowing staff to access sick leave while lawfully stood down because there is no work 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", Justice Flick said.

AAP

normanton

18th May 2020, 01:48

I wonder why AIPA wasn't involved?

machtuk

18th May 2020, 01:50

The opening sentence is wrong, should have read....."Qantas court judge" ! -)

CaptCloudbuster

18th May 2020, 02:37

I would have thought the unions have a case.

Who’d have thought Sunfish would have been wrong. Again.

Qantas 2. Sunfish 0. (https://www.pprune.org/10748221-post50.html)

ampclamp

18th May 2020, 05:52

There's 2 guys there I used to work with that have terminal illnesses. They must be gutted.

dragon man

18th May 2020, 06:36

There's 2 guys there I used to work with that have terminal illnesses. They must be gutted.

So what’s the problem, he thought they had a case , they did and the TWU agreed however this judge didn’t. It happens all the time and I suspect will now go to a full bench for appeal.

Feetweet

18th May 2020, 06:51

There's 2 guys there I used to work with that have terminal illnesses. They must be gutted.

If they have terminal illnesses then they wouldn't have been on sick leave. They would have been medically terminated and have been able to claim through loss of license / loss of income policies.

ampclamp

18th May 2020, 21:01

They're engineers not pilots. 30 to 40 plus years of service and now unable to access sick leave.

Ex FSO GRIFFO

19th May 2020, 02:03

Was that a frontal lobotomy....or a bottle in front of me.....

(Couldn't help it...the devil made me do it....)

neville_nobody

19th May 2020, 04:06

The judge's underlying reasoning is that sick leave is actually a form of income protection and since there is no income to protect you are not entitled to sick leave. Section 524/25 of the Fair Work Act is not being taken on face value which I am guessing is what the Unions were hoping for. There seems to be alot of interpretation of the 'intent' of what is written in the law.

In the context of the present case, it is respectfully concluded that the proper construction and application of ss 524 and 525 mirror the object and purpose of stand down provisions as summarised by Morling J in Townsend v General Motors-Holden’s Ltd (1983) 4 IR 358. Contrary to the submissions advanced on behalf of the Unions, to so construe ss 524 and 525 is not the imposition upon these terms of a “judicially constructed policy” but rather a construction of these provisions by reference to their terms as discerned from the legislative context out of which these provisions emerged.

https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca0656

Keg

19th May 2020, 06:51

I wonder if there is a case for someone on long term sick on fleets that are actually doing some flying. As the flying rotates through, you’d expect that even someone who had been on SL would receive a notice that it’s their turn to be stood up. Would it be discrimination if they weren’t?

So if someone junior to you in rank and base has been stood up to fly then I would think that someone on SL should be able to avail themselves of at least one month’s SL- or whatever time frame is being offered to stood up crew.