A Federal Court appeals bench rejected their claim in November, saying that because the employees were not working there was nothing to take leave from. Qantas won an earlier Federal Court case in May.
But the workers say they cannot afford to get by on JobKeeper if they are sick, and they should be able to take sick leave they have accrued and be paid at their usual rates.
The staff are still entitled to annual and long service leave, as well as the JobKeeper payments. But requests for sick, carers’, compassionate and personal leave have been denied.
The lawsuit is backed by four unions and the Australian Council of Trade Unions.
The ACTU says that seriously ill workers have had their sick leave stopped in the middle of treatment and that some have had to take redundancy.
ACTU assistant secretary Scott Connolly said Qantas’ conduct had been “callous and illegal”.
The workers who need their sick leave include a man battling cancer and another with heart disease, both of whom have spent over three decades with the company, Connolly said.
Connolly said the case would have ramifications beyond Qantas.
“Stand downs are meant to be strictly limited to particular circumstances, but even in those circumstances workers should not be prevented from taking leave or being paid their basic entitlements,” he said in a statement.
“That’s why this case must be fought all the way to the High Court. Qantas, and all employers must be held to account to ensure that entitlements for workers are not put at risk, now or in the future.”
The Federal Court bench was split two to one.
The dissenting judge, Justice Mordecai Bromberg, said a declaration should be made to the effect that for workers entitled to sick leave Qantas was not authorised to withhold the payment.
Qantas directed AAP to a statement published after the previous decision, stating that COVID-19 and border restrictions meant the majority of their employees have had no work for months.
“The company has taken on more than $2 billion in debt as revenue has collapsed. It’s been an incredibly difficult time for everyone,” the statement reads.
“There’s now been two courts who have confirmed that employees who are stood down are not eligible to receive paid sick leave because there is no work to be absent from. This is not just true of Qantas, but across the economy.”
At the October AGM, Qantas’ chairman Richard Goyder criticised the onslaught of union-led court cases being brought against the company.
He said 66 cases had been brought in the past two years and that Qantas had won all but five. He believes many of the cases should not have proceeded.
“Unfortunately, that’s cost us over $10 million to defend those cases…. It’s not only wasting their members’ money but our money in this crisis and we hope that some sense will prevail,” Goyder said.
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