Dansie v JPL Group [2020] QIRC 72

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Dansie v JPL Group [2020] QIRC 072 PARTIES: Dansie, Jaimee Loren (Applicant) v JPL Group (Respondent) CASE NO: EC/2020/224 PROCEEDING: Application for payment instead of taking long service leave DELIVERED ON: 15 May 2020 MEMBER: PIDGEON IC HEARD AT: On the papers ORDER: The application for payment instead of taking long service leave is dismissed. CATCHWORDS: INDUSTRIAL LAW – Payment for long service leave in lieu of taking long service leave - s 110 of the Industrial Relations Act 2016 (Qld) - whether applicant had an entitlement to long service leave LEGISLATION: Industrial Relations Act 2016 (Qld), s 95, s 96 and s 110 Reasons for Decision Introduction [1] Ms Jaimee Loren Dansie filed an application on 30 March 2020 for payment instead of taking long service leave. This application was made pursuant to ss 95(2)(a) and 110(1) of the Industrial Relations Act 2016 (Qld) ("IR Act"). -- 1 of 4 -- 2 [2] Ms Dansie commenced her employment on a full-time basis as a salary manager with JPL Group on 18 October 2010. Ms Dansie began a period of maternity leave on 15 April 2016 and returned June 2017 in a part time capacity as a sales assistant. Presently Ms Dansie is employed casually and has been since October or November 2019. At the time of filing the application, she had been employed for eight years and approximately four months, or seven years discounting the time of maternity leave. [3] Section 95(2)(a) provides that an employee is entitled to long service leave on full pay where the employee has completed 10 years continuous service.1 Additionally, s 110(1) provides that an employee may be paid for all or part of an entitlement to long service leave where the Commission is satisfied the payment should be made on compassionate grounds or on the ground of financial hardship.2 [4] Ms Dansie has not completed 10 years of continuous service. [5] Ms Dansie applies for payment of a proportionate amount of long service leave, namely, the equivalent of $5,615.25 (gross). [6] Pursuant to s 110(1) of the IR Act, an employee may be paid for all or part of an entitlement to long service leave instead of taking the leave or part of the leave under subsection (2) or (3). [7] Section 110(2) of the IR Act, allows for payment instead of long service leave if a relevant industrial instrument provides for the employee to be paid for all or part of the entitlement, and the employee and employer agree by a signed agreement the payment be made and the payment is made in accordance with the industrial instrument. [8] For the reasons referred to below, Ms Dansie does not have an entitlement to long service leave within the meaning of ss 110(1) and 110(2) of the IR Act, as she has not completed 10 years of continuous service. Relevant legislation [9] Section 95 of the IR Act provides for an entitlement to long service leave in the following terms: 95 Entitlement—employees other than seasonal employees (1) This section applies to an employee, other than a seasonal employee. Note - For provisions applicable to seasonal employees, see subdivisions 7 and 8. (2) The employee is entitled to long service leave, on full pay, of – (a) if the employee has completed 10 years continuous service - 8.6667 weeks; and 1 Industrial Relations Act 2016 (Qld) s 95(2)(a). 2 Ibid s 110(1). -- 2 of 4 -- 3 (b) after 10 years service, if the employee has completed at least a further 5 years continuous service - a period that bears to 8.6667 weeks the proportion that the employee's further period of continuous service bears to 10 years. … [10] Section 110 of the IR Act provides for the payment of a long service leave entitlement as follows: 110 Payment instead of long service leave (1) An employee may be paid for all or part of an entitlement to long service leave instead of taking the leave or part of the leave under subsection (2) or (3). (2) The payment may be made if – (a) a relevant industrial instrument or federal industrial instrument provides for the employee to be paid for all or part of the entitlement; and (b) the employee and employer agree by a signed agreement the payment may be made; and (c) the payment is made in accordance with the industrial instrument. (3) If no relevant industrial instrument or federal industrial instrument provides for the employee to be paid for all or part of the entitlement, the payment may be made only if the payment is ordered by the commission on application by the employee. (4) The commission may order the payment only if satisfied the payment should be made – (a) on compassionate grounds; or (b) on the ground of financial hardship. Consideration [11] Pursuant to section 95(2)(a) of the IR Act, an employee is entitled to long service leave on full pay where the employee has completed 10 years of continuous service.3 As stated above, Ms Dansie does not satisfy this requirement, as she has not completed 10 years of continuous service as at the date of the application filed in the Industrial Registry. It is unclear on the information provided if the period of maternity leave interrupts Ms Dansie's continuous service, however this is immaterial as even if it did not, her employment of eight years and four months still falls short of the required 10 years. [12] Section 110(1) of the IR Act allows for an employee to be paid for all or part of an entitlement to long service leave instead of taking the leave under subsection (2) or (3). [13] Some industrial instruments provide that an employee is entitled to long service leave after seven years of continuous service. If such an entitlement is created by an industrial instrument, then an employee may seek to be paid a proportionate payment for long service leave after seven years of continuous service. 3 Industrial Relations Act 2016 (Qld) s 95(2)(a). -- 3 of 4 -- 4 [14] JPL Group identified the relevant industrial instrument to Ms Dansie's employment as the Prouds Retail Employees Enterprise Agreement 2011 ("the Agreement"). [15] Long service leave is dealt with at cl 3.5 of the Agreement and states it "will be given and taken in accordance with the following legislation (as applicable and as amended from time to time)". It then goes on to list each state and territory and the relevant piece of legislation, I note the Agreement refers to the Workplace Relations Act 1997 which has since been repealed, and the current legislation in force being the IR Act. [16] No other statutory instrument relevantly applies to the applicant's employment and accordingly, any entitlements to long service leave must be accrued and be paid in accordance with the IR Act. [17] Section 110(2) of the IR Act is not satisfied and cannot be relied upon, as Ms Dansie does not have an entitlement to take long service leave as she has not completed 10 years of continuous service. [18] For completeness, s 95(3) provides that an employee who has completed less than 10 years of continuous service but at least seven years of continuous service is entitled to a proportionate payment for long service leave on the termination of the employee's service. As mentioned above at [11] it is unclear on the current information if Ms Dansie interrupted her continuous service in 2016, or if she may qualify for a payment upon termination subject to the reasons set out at s 95(4). [19] Ms Dansie's entitlement to a proportionate payment for long service leave pursuant to s 95(3) of the IR Act is not the subject of this application, however may encounter difficulties due to the reasons outlined above. Conclusion [20] For the forgoing reasons, Ms Dansie's application for payment instead of taking long service leave is dismissed. -- 4 of 4 --