Barron v Queensland Business Magazines Pty Ltd [2002] QIRC 52 (2002) 169 QGIG 577

19 April, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 577 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 14 – payment for annual leave on termination of employment Bernadette Barron AND Queensland Business Magazines Pty Ltd (Case No. W229 of 2000) COMMISSIONER SWAN 9 April 2002 DECISION This matter has had protracted hearing dates over a period of time. Disputed facts between the parties around basic issues, coupled with, at least initially, a jurisdictional challenge, has contributed to this situation. A further difficulty arose as a consequence of one unrepresented party grappling on occasions with complex issues. As a consequence, at various times, parties have been asked to review their respective positions in light of relevant Legislative requirements. The application was lodged pursuant to s. 14 of the Industrial Relations Act 1999 (the Act). The applicant seeks payment of $11,076.00 for annual leave allegedly not taken between 8 May 1989 and 29 February 2000. This brief decision will assist in narrowing down the areas in contention between the parties. With those matters clarified, the parties agree that the matter may best be conciliated between them with the assistance of the Commission. At a period in time during the hearing of this matter, the jurisdictional challenge mounted by the respondent was withdrawn. It is not necessary to detail the submissions surrounding that debate save to state that it was accepted by the respondent that for current purposes the applicant was an employee of the respondent. During the course of these hearings, the Commission alerted the parties to Division 3 of the Act which relates to Annual Leave. It is sufficient at this stage to highlight the Legislative situation as I see it for the purpose of assisting the parties to reach an understanding as to how the matter should progress to finalisation. As expressed to the parties on the last hearing date, the application should have been lodged under s. 278 of the Act. This section gives the Commission the power to grant “unpaid wages” to employees. “Wages” is defined in the Act as follows:– “ ‘wages’ means – (a) an amount payable to an employee for – (i) work performed, or to be performed, by the employee; or (ii) a public holiday; or -- 1 of 2 -- 578 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 19 April, 2002 (iii) leave the employee is entitled to; or (iv) termination of employment; or (b) a salary; or (c) an amount payable from wages for the employee, with the employee’s written consent; or (d) a shortfall under section 220.”. Division 3 of the Act relates to annual leave. Section 14 of that Division determines, amongst other things, under what circumstances annual leave is paid. Section 11 details an employee’s entitlement to annual leave and s. 11.(7) states as follows:– “Annual leave accumulates, unless an industrial instrument provides otherwise.”. The “industrial instrument” in question is the Clerical Employees Award – State. Section 278 of the Act permits an employee to claim unpaid wages for the period of six years before the date of the application. This is, however, subject to any embargo being placed upon the accumulation of leave as per the Award. The Award as it was in 1993, provided in clause 5.1(b) that:– “If any such holidays shall not have been taken as they fall due from time to time, such holidays shall be cumulative from year to year for a period not exceeding 2 years.”. The 1993 Award was amended in May 26 1996 and the abovementioned clause 5.1(b) was deleted. In terms of the claim before me, it is not necessary to make further comment. The applicant is requested to make contact with the Registry of the Commission to make arrangements for the matter to be conciliated. Order Accordingly, D. A. SWAN, Commissioner. Appearances:– Released: 09 April 2002 Mr P. G. Betros, of Russell & Co Solicitors, for the applicant. Mr T. Payne and Ms E. MacMillan, on behalf of Queensland Business Magazines Pty Ltd, the respondent. -- 2 of 2 --