Are furloughed staff entitled to paid sick leave?

Employers are not required to grant furloughed staff paid sick leave even in the face of a global pandemic, according to a new decision penned by the Federal Court of Australia.

The ruling comes after the Transport Workers’ Union (TWU) took Australian flag carrier Qantas to court for refusing to pay sick leave to workers stood down during the COVID-19 outbreak.

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The court’s logic: “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,” Justice Geoffrey Flick said.

In other words, workers are barred from accessing paid sick leave benefits because they aren’t reporting for duty anyway. Forcing companies to remunerate time off due to illness effectively renders the furlough useless, the court ruled.

This 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,” Flick wrote in his decision.

The justice emphasised how the pandemic essentially ground air travel to a halt. “The effect on the economy and business has been unparalleled. International travel has all but ceased,” Flick said.

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In times of crisis, standing down workers entails keeping people employed while keeping them off the payroll temporarily. The measure purportedly eases the pressure on cash-strapped companies that are looking to save their business and preserve jobs in the long run.

The 25,000 Qantas employees who were furloughed when global travel slowed down can still turn to other options, such as annual leave, long-service leave and the government’s JobKeeper payments, a representative from Qantas said.

The TWU, however, plans to appeal the decision, calling it “bitterly disappointing” for workers and their families.

“This is about justice and the fact that workers who are battling serious illnesses should be allowed to draw down the significant sick leave they have accrued through years of hard work at Qantas,” said Michael Kaine, national secretary of TWU.