Curran v State of Queensland (Queensland Police Service) [2019] QIRC 142

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Curran v State of Queensland (Queensland Police Service [2019] QIRC 142 PARTIES: Curran, Richard Greaves (Applicant) v State of Queensland (Queensland Police Service) (Respondent) CASE NO: EC/2019/509 PROCEEDING: Application for payment instead of taking long service leave DELIVERED ON: 30 September 2019 CONFERENCE DATE: 26 September 2019 MEMBER: HEARD AT: Merrell DP Brisbane and on the papers ORDER: 1. 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: Directive 11/18 Minister for Industrial Relations Directive: Long Service Leave Industrial Relations Act 2016 (Qld), s 95 and s 110 Police Service Administration Act 1990, s 2.5A Public Service Act 2008 (Qld), s 54 Queensland Police Service Employees Award - State 2016, cl 23 -- 1 of 6 -- 2 APPEARANCES: Mr R. Curran, the Applicant. Mr G. Carthew and Ms R James of the Public Safety Business Agency for the State of Queensland (Queensland Police Service). Reasons for Decision Introduction [1] Mr Richard Curran is currently employed in the Queensland Police Service as a general duties police officer and he has attained the rank of Senior Constable. Senior Constable Curran is employed by the State of Queensland on a permanent, full-time basis. [2] By application filed on 9 September 2019, Senior Constable Curran made application for payment instead of taking long service leave. Senior Constable Curran's application was made pursuant to s 110 of the Industrial Relations Act 2016 ('the Act'). [3] That section relevantly provides that an employee may be paid for all or part of an entitlement to long service leave if the payment is ordered by the Commission where the Commission is satisfied the payment should be made on compassionate grounds or on the ground of financial hardship. [4] In Senior Constable Curran's application, he states that he commenced employment with his employer on 14 November 2011 and that the date he became entitled to take long service leave was 14 November 2018. Senior Constable Curran applies for the payment of the equivalent of 537 hours of long service leave. [5] The State of Queensland opposes Senior Constable Curran's application only on the ground that he has no entitlement to long service leave within the meaning of s 110(1) of the Act. [6] Having regard to the position taken by the State of Queensland in respect of Senior Constable Curran's application, I held a conference between the parties on 26 September 2019. During that conference, I indicated to Senior Constable Curran, having regard to the position taken by the State of Queensland in respect of his application, that I would give him the opportunity to provide written submissions as to why he is presently entitled to long service leave within the meaning of s 110(1) of the Act. [7] Senior Constable Curran indicated that he did not wish to take up that opportunity to make those submissions and, as a consequence, I indicated I would make a decision based upon the material before me. [8] The question for my determination it is whether Senior Constable Curran has an entitlement to long service leave within the meaning of s 110(1) of the Act. [9] In my view, Senior Constable Curran does not have such an entitlement [10] My reasons follow. -- 2 of 6 -- 3 Section 110 of the Act [11] Section 110 of the Act provides: 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. (5) The full bench must not make a general ruling that allows an employee to be paid for an entitlement to long service leave instead of taking the leave. (6) In this section - employee includes a registered worker under the Building and Construction Industry (Portable Long Service Leave) Act 1991. entitlement to long service leave includes an entitlement to long service leave under the Building and Construction Industry (Portable Long Service Leave) Act 1991, section 57(1). Does Senior Constable Curran have an entitlement to long service leave? [12] The Queensland Employment Standards are contained in ch 2, pt 3 of the Act. Long service leave is dealt with in div 9 of that part and that division contains s 95. [13] Section 95 of the Act provides: 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 (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. (3) An employee who has completed at least 7 years continuous service is entitled to a proportionate payment for long service leave on the termination of the employee's service. -- 3 of 6 -- 4 (4) However, if the employee's service is terminated before the employee has completed 10 years continuous service, the employee is entitled to a proportionate payment only if - (a) the employee's service is terminated because of the employee's death; or (b) the employee terminates the service because of - (i) the employee's illness or incapacity; or (ii) a domestic or other pressing necessity; or (c) the termination is because the employer - (i) dismisses the employee for a reason other than the employee's conduct, capacity or performance; or (ii) unfairly dismisses the employee; or (d) the termination is because of the passing of time and - (i) the employee had a reasonable expectation that the employment with the employer would continue until the employee had completed at least 10 years continuous service; and (ii) the employee was prepared to continue the employment with the employer. (5) Long service leave is exclusive of a public holiday that falls during the period of the leave. (6) An employee who is entitled to long service leave other than under this Act is entitled to leave that is at least as favourable as the entitlement under this section. (7) In this section - proportionate payment means a payment equal to the employee's full pay for a period that represents the same proportion of 8.6667 weeks that the employee's period of continuous service bears to 10 years. [14] The Queensland Police Service Employees Award – State 2016 ('the Award') applies to Senior Constable Curran. [15] Clause 23 of the Award deals with long service leave and provides: (a) Long service leave, including for casual employees, is provided for in Division 9 of the QES. Clause 23(b) supplements the QES. (b) In lieu of the provisions of sections 95(2)(a) and (b) of the Act, all employees who complete 10 years' continuous service are entitled to long service leave at the rate of 1.3 weeks on full pay for each year of continuous service and a proportionate amount for an incomplete year of service. Note: Where a directive about long service leave covers an employee, the provisions of the directive apply to the employee to the extent it provides a more generous entitlement. [16] The only other instrument that may have any bearing on Senior Constable Curran's entitlement to long service leave is Directive 11/18 Minister for Industrial Relations Directive: Long Service Leave ('Long Service Leave Directive'). [17] The Long Service Leave Directive is made under s 54 of the Public Service Act 2008 and is expressed to apply, relevantly, to 'public service officers' and 'tenured general employees engaged under section 147(2)(a) of the Public Service Act 2008.' Section 8 -- 4 of 6 -- 5 of the Public Service Act 2008 provides that a person is a public service officer if the person is employed under the Public Service Act 2008 as a chief executive, senior executive or an officer of another type. [18] However, s 2.5A of the Police Service Administration Act 1990 provides that a police officer is employed under that Act and not under the Public Service Act 2008. As such, Senior Constable Curran is employed under the Police Service Administration Act 1990. [19] As a consequence, the Long Service Leave Directive does not cover Senior Constable Curran. [20] Having regard to the above: • a police officer, to whom the Award applies, is entitled to take long service leave on full pay as provided for by s 95 of the Act; • cl 23(b) of the Award modifies the entitlement to police officers to long service leave so that a police officer who completes 10 years continuous service is entitled long service leave at the rate of 1.3 weeks on full pay for each year of continuous service and a proportionate amount for an incomplete year of service which is a more favourable entitlement than that provided under s 95(2) of the Act;1 • a police officer who has completed at least 7 years continuous service is entitled to a proportionate payment for long service leave on the termination of the police officer's employment; however, if the police officer's services are terminated before the police officer has completed 10 years continuous service, the police officer is entitled proportionate payment of long service leave only in the circumstances described in s 95(4) of the Act; and • there is no other legislative or industrial instrument that confers an entitlement on a police officer to take pro rata long service leave after completing at least 7 but less than 10 years' continuous service. [21] For the above reasons, Senior Constable Curran does not have an entitlement to long service leave within the meaning of s 110(1) of the Act. This is because Senior Constable Curran does not have 10 years continuous service. Conclusion [22] Section 110(1) of the Act provides that an employee may be paid for all or part of an entitlement to long service leave instead of taking the leave only in the circumstances described in s 110(2) or in s 110(3) of the Act. [23] For the reasons given, Senior Constable Curran does not have an entitlement to long service leave within the meaning of s 110(1) of the Act. 1 Section 18(1) of the Industrial Relations Act 2016 relevantly provides that an industrial instrument may not include a provision that displaces, or is otherwise inconsistent with, the Queensland Employment Standards, unless the provision is at least as favourable for an employee as the Queensland Employment Standards. -- 5 of 6 -- 6 [24] Senior Constable Curran's application for payment instead of taking long service leave is dismissed. -- 6 of 6 --