Federal Court picks up torch in Qantas' stand-down test case - The Australian Financial Review

“It is in the interests of justice that questions of such general and widespread application and importance be determined by a superior court and not left to private arbitration.”

Qantas has stood down more than 20,000 employees without pay across its operations during the coronavirus crisis, including two-thirds of its mainline licensed engineers and 70 per cent of Jetstar’s licensed engineers.

However, Justice Katzmann pointed out that several other businesses had taken the same route.

Under the Fair Work Act, employers can stand down staff without pay only if there is a stoppage of work for which the employer cannot reasonably be held responsible and as a result staff cannot be usefully employed.

Some lawyers have argued businesses cannot stand down workers if they close shop during a trade slump, as the employer would have caused the interruption in work even if the closure is an indirect consequence of the pandemic.

But the provision is mostly untested, and previous stand-down challenges by the education union during the crisis have resulted in schools reinstating employees rather than risk a ruling.

RMIT University professor Anthony Forsyth said while many employers, such as cafes, restaurants and cinemas, would have made out their case, others were in a grey area.

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“If the Federal Court finds that Qantas has stood down more engineers than it was lawfully able to, that could open up other groups of workers contesting the basis for their stand-downs too – possibly resulting in back pay,” he said

Qantas, for its part, reckons rival airline Virgin Australia would also be affected by the Federal Court ruling. Others believed to be at risk are casino operator Star Entertainment, retailer Premier Investments and travel agency Flight Centre. All have stood down thousands of staff.

Professor Forsyth
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