Application EC/2006/56 [2006] QIRC 149 (2006) 183 QGIG 878

[Extract from Queensland Government Industrial Gazette, dated 24 November, 2006, Vol. 183, No. 17, pages 878-879] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 53 - application for payment of long service leave Application (EC/2006/56) COMMISSIONER BLADES 10 November 2006 REPORT ON DECISION (as edited) In giving his decision from the Bench on 10 November 2005, Commissioner Blades said: "The authority of this Commission under s. 53(4) of the Industrial Relations Act 1999 (the Act) to order the payment of the cash equivalent of long service leave is not unfettered. The Statute requires that an order may be made only if the Commission is satisfied the payment should be made: (a) on compassionate grounds; or (b) on the ground of financial hardship. No grounds capable of falling under the description 'compassionate grounds' have been raised. The application is based on grounds of 'financial hardship'. Financial hardship is not defined but in the case of Dallow, reported at (2004) 177 QGIG 255, I adverted to the dictionary definition. The Concise Oxford Dictionary includes 'severe suffering or privation' among the meanings of 'hardship'. The Macquarie Concise Dictionary defines 'hardship' as 'a condition that bears upon one; severe toil, trial, oppression or need'. It is my view that 'financial hardship' means or includes 'severe financial need'. The Act does not permit long service leave to be just swapped for cash. In this case, the applicant obtained a loan of $1,076,000 to purchase a property under contract for $1,200,000. He intends to finance the purchase by the sale of his residence at Brookfield for around $700,000. There is a monthly interest bill of $8,713 for bridging finance. The sale of the new property is due to settle on 15 December 2006. That sale could have been made subject to the sale of the Brookfield property but was made unconditional so as to be more attractive to the seller. There is no indication of when the Brookfield property might be sold. In all of these circumstances, I do not consider that there is a financial hardship as that phrase is used in the Act. The hardship has been created by a voluntarily and purposely generated debt which could easily have been avoided. The employer supports the application and is ready and willing to make the payment. The attitude of an employer has some relevance but is not determinative and cannot replace the prescription in the Act. The Act does not permit the payment to be made by consent. But in view of the employer's support for the application, it would appear to me that the execution of a Queensland Workplace Agreement under the provisions of the Act may be more appropriate to overcome the impediment to the payment and that avenue should be explored. Section 54(2) allows payment if an industrial instrument permits. A Queensland Workplace Agreement is an industrial instrument. The application is dismissed.". Dated 10 November 2006. By the Commission, [L.S.] G.D. SAVILL, Industrial Registrar. Appearances: Applicant. Released: 10 November 2006 Government Printer, Queensland The State of Queensland 2006. -- 1 of 1 --