Loading...
Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Joldescu v Dyno Nobel Asia Pacific Pty Ltd

 

[2019] QIRC 135

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Paul Joldescu v Dyno Nobel Asia Pacific Pty Ltd [2019] QIRC 135

PARTIES:

Paul Joldescu

(Applicant)

v

Dyno Nobel Asia Pacific Pty Ltd

(Respondent)

CASE NO:

EC/2019/429

PROCEEDING:

Application for payment instead of taking long service leave

DELIVERED ON:

13 September 2019

MEMBER:

HEARD AT:

McLennan IC

On the papers

ORDERS:

  1. Application granted.
  2. Pursuant to s 580 of the Act, all documents relevant to the matter be withheld from release or search absolutely or until further order of the Commission.

CATCHWORDS:

INDUSTRIAL LAW – Payment for long service leave in lieu of taking long service leave – whether an entitlement to cash out long service leave with less than 10 years’ service is permitted

LEGISLATION:

Industrial Relations Act 2016 (Qld) s 110 (1), (3), (4), s 101 (2), (3), s 95

Dyno Nobel Central and South Queensland Operations Enterprise Agreement 2017

Decision

  1. [1]
    On 23 July 2019, Mr Paul Joldescu (Applicant) filed with the Industrial Registrar an application pursuant to s 110 of the Industrial Relations Act 2016 (Qld) (the Act) in which he sought payment instead of taking long service leave on the grounds of financial hardship (the application).

  1. [2]
    The employer was identified as Dyno Nobel Asia Pacific Pty Ltd (Respondent).

Applicant’s submission

  1. [3]
    The Applicant indicated at Parts 4.1 and 4.2 of the application that his employment had commenced with the Respondent on 23 May 2011 and that he had become entitled to take long service leave on 23 May 2019.

  1. [4]
    Further, the Applicant stated at Parts 4.3 and 4.4 that he was applying for 415 hours of long service leave, on grounds of financial hardship.

  1. [5]
    In an undated letter attached to the application, the Applicant detailed the extent of the financial hardship experienced and the significant efforts he had already undertaken to attempt to ameliorate his situation.

  1. [6]
    Further, the Applicant believed that he could access his accrued long service entitlement after eight completed years of continuous service with the Respondent, on the basis of advice from his Human Resources Manager to make application to the Queensland Industrial Relations Commission (QIRC).

  1. [7]
    The Applicant also referred to the Dyno Nobel Central and South Queensland Operations Enterprise Agreement 2017, Clause 20, with respect to the entitlement to paid long service leave after eight years.

Respondent’s submission

  1. [8]
    In a Directions Order issued by the Queensland Industrial Relations Commission (QIRC) (dated 23 July 2019), the Respondent was directed to provide a statement which included advice on the following:

  1. (a)
    The Applicant’s present entitlement to long service leave;
  2. (b)
    The gross and net monetary value of the long service leave applied for; and
  3. (c)
    The title of the Industrial Instruments which apply to the Applicant (i.e. Award, Certified Agreement).

  1. [9]
    In correspondence (dated 30 July 2019), the Respondent informed the QIRC that:

  • The Applicant had commenced employment with the Respondent on 23 May 2011;

  • The Applicant is currently employed full-time;

  • The Applicant’s accrued long service leave balance as at 30 July 2019, is 504.32 hours (or 66.36 days or 13.27 weeks);

  • The monetary value of the amount of long service applied for by the Applicant is $30,626.86 gross or $16,319.87 net (assuming payment is processed in line with standard weekly pay);

  • The Dyno Nobel Central and South Queensland Operations Enterprise Agreement 2017 (the Enterprise Agreement) applies to the Applicant’s employment; and

  • The Dyno Noble Enterprise Agreement does not provide for payment instead of taking long service leave.

  1. [10]
    The Respondent indicated their position that the Applicant is not entitled to payment instead of taking long service leave for the following reasons:

  • The Enterprise Agreement does not provide for payment instead of taking long service leave;

  • Where there is no provision for payment in the Enterprise Agreement, under section 102(3) of the Act, payment for all or part of an entitlement to long service leave may be made only if the payment is ordered by the Commission. Under the Act, the Applicant has no entitlement to long service leave as he has not yet completed the requisite period of service. As such the Commission is unable to make the Order sought in the application; and

  • In some circumstances, an employee who has completed at least seven years continuous service is entitled to a proportionate payment of long service leave if their employment is terminated. However, the Applicant’s employment has not been terminated.

Further submissions

  1. [11]
    As there was no agreement between the Parties as to whether or not the Applicant had an entitlement to be paid out part of his long service leave accruals, the Queensland Industrial Relations Commission (QIRC) sent an email to the Parties on 7 August 2019, inviting them to each make any further submissions in support of their respective positions.

  1. [12]
    The Applicant then provided a further written submission (dated 8 August 2019) to the effect that:

  • Existing employees are entitled to paid long service leave of thirteen weeks after each eight completed years of continuous service, in accordance with the provisions of the Enterprise Agreement;

  • The industry standard for coal mine workers long service leave is 13 weeks of long service leave after 8 years of service, in accordance with the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) Part 5A; and

  • The Respondent’s Human Resources Manager – Coal, Ms Tania Monson, had confirmed the eligibility of the Applicant to access an entitlement to long service leave in an email reply to his inquiry dated 7 August 2019.

  1. [13]
    The Respondent also provided a further written submission (dated 21 August 2019), which largely restated their position as summarised in paragraph 9 above. The points made by the Respondent included:

  • The Applicant does not have ten years’ continuous service;

  • There is no provision in either the Act or in the Enterprise Agreement for the payment of long service leave prior to ten years’ service;

  • That the Applicant has incorrectly asserted that he should receive payment for long service leave prior to ten years’ service, as he is not entitled to take long service leave prior to ten years’ service under the Act;

  • The Enterprise Agreement does not provide for payment instead of taking long service leave;

  • Under the Act, payment for all or part of the long service leave entitlement may be ordered by the Commission. However, as the Applicant has not completed the requisite period of service, there is no entitlement to long service leave and the Commission is unable to make the Order sought in the application; and

  • The reference to the Coal Mining Industry (Long Service Leave) Administration Act 1992 in the Applicant’s submissions are not relevant to the application.

Enterprise Agreement

  1. [14]
    The Enterprise Agreement prescribes the provision of long service leave, as follows (emphasis added):

20Long Service Leave

20.1Employees are entitled to paid long service leave as per the following,

  1. Existing Employees are entitled to paid long service leave of thirteen (13) weeks after each eight (8) completed years of continuous service with the Company.

  1. New employees are entitled to paid long service leave under and subject to the provisions of the National Employment Standards and the Industrial Relations Act 1999 (Qld).

20.2Long service leave is paid at the applicable rate in accordance with appendix A of this agreement.

Industrial Relations Act 2016 (Qld)

  1. [15]
    Relevant extracts from the Industrial Relations Act 2016 (Qld) are reproduced below (emphasis added):

110 Payment instead of long service leave

  1. (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).
  1. The payment may be made if -

  1. a relevant industrial instrument or federal industrial instrument provides for the employee to be paid for all or part of the entitlement; and
  2. the employee and employer agree by a signed agreement the payment may be made; and
  3. the payment is made in accordance with the industrial instrument.
  1. (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.
  1. (4)
    The commission may order the payment only if satisfied the payment should be made –

  1. on compassionate grounds; or
  2. on the ground of financial hardship.

101 Other matters relating to the payment of long service leave

  1. (1)
    An employee and employer may agree on when, and the way in which, the employee will be paid for long service leave.

  1. (2)
    The commission may decide any matter relating to payment for long service leave that the employee and employer cannot agree on.

  1. (3)
    An amount payable for long service leave becomes payable at a time agreed between the employee and employer or, if they can not agree, at a time decided by the commission.

95Entitlement—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.

  1. The employee is entitled to long service leave, on full pay, of –

  1. if the employee has completed 10 years continuous service - 8.6667 weeks; and
  2. 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.

  1. 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.
  2. 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 –

  1. the employee's service is terminated because of the employee's death; or
  2. the employee terminates the service because of -
  1. the employee's illness or incapacity; or
  2. a domestic or other pressing necessity; or
  1. the termination is because the employer -
  1. dismisses the employee for a reason other than the employee's conduct, capacity or performance; or
  2. unfairly dismisses the employee; or
  1. the termination is because of the passing of time and -
  1. 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
  2. the employee was prepared to continue the employment with the employer.

Conclusion

  1. [16]
    The Applicant commenced employment with the Respondent on 23 May 2011. That is, 8 years and 2 months have elapsed between the date of commencement of employment and the date of the application (23 July 2019).

  1. [17]
    The Applicant is a current employee of the Respondent.

  1. [18]
    The application seeks to ‘cash out’, rather than take, long service leave on the grounds of financial hardship.

  1. [19]
    Provisions permitting the cashing out of long service leave are included in the Act, section 110. In particular, an employee may be paid an ‘entitlement’ to long service leave instead of taking the leave on application to the Commission (if no relevant industrial instrument provides for payment), though only if the Commission is satisfied on compassionate grounds or grounds of financial hardship that the payment should occur.

Entitlement to long service leave

  1. [20]
    I am satisfied that the Applicant has an ‘entitlement’ to long service leave for the following reasons.

  1. [21]
    It is uncontentious that the Enterprise Agreement applies to the employment relationship between the parties. Indeed, both parties referenced that Agreement in support of their respective submissions.

  1. [22]
    The Enterprise Agreement prescribes an entitlement to long service leave for two different categories of employees – ‘existing employees’ and ‘new employees.’

  1. [23]
    As at the date of certification of the Enterprise Agreement on 20 June 2017, the Applicant was an ‘existing employee’ for the purposes of this provision. Therefore, the Applicant has accrued an absolute entitlement to paid long service leave of thirteen weeks at the point of eight years continuous service working for the Respondent.

  1. [24]
    The language of the Enterprise Agreement particularises the entitlement. Clause 20.1 of the Enterprise Agreement does not establish a pro-rata entitlement with differentiated access conditions. Instead, the Enterprise Agreement creates an entitlement simpliciter and absolute, which for the purposes of payment in lieu under section 110 of the Act can be categorised in the same way as an entitlement accruing after 10 years as prescribed in section 95 of the Act.

  1. [25]
    The email exchange between the Respondent’s Human Resources Manager – Coal and the Applicant further confirms the shared understanding of an entitlement to ‘take’ long service leave after eight years. Although the question of whether the entitlement to take long service leave is synonymous with the entitlement to cash out the entitlement is both unasked and unanswered at that time.

Payment in lieu of taking long service leave

  1. [26]
    The Applicant has drawn the inference that if the absolute entitlement to take long service leave after eight years exists for his employee category, then it follows that there is also the ability to cash out the entitlement at that time, though he does not set out a legal path to that conclusion.

  1. [27]
    I am satisfied that the Applicant is able to cash out, instead of take, the long service leave entitlement.

  1. [28]
    The question of whether this absolute entitlement to thirteen weeks paid long service leave as at eight years continuous service may be cashed out for ‘existing employees’ is silent in the Enterprise Agreement.

  1. [29]
    Whilst the Enterprise Agreement provision specifically refers to the application of long service leave arrangements contained in the Industrial Relations Act 1999 (Qld) for the category of ‘new employees’, it makes no such reference to its application in this sense to the ‘existing employee’ category.

  1. [30]
    In light of the omission of a reference to the Industrial Relations Act 1999 (Qld) or the subsequent Act as it applies to long service leave for ‘existing employees’, no intention to now restrict access to the absolute entitlement to long service leave after eight years continuous service for ‘existing employees’ can be inferred in my view.

  1. [31]
    Where an Applicant for a long service leave payment in lieu remains employed by the Respondent, as in this case, the Act under section 110(1) provides two pathways to attaining payment in lieu, namely sections 110(2) and 110(3), as extracted at paragraph 15 above.

  1. [32]
    Section 110(2) of the Act provides that where a relevant industrial instrument governing the employment relationship provides for payment in lieu of taking the leave, the parties may undertake by mutual agreement to enact the process enunciated in that instrument to make payment in lieu.

  1. [33]
    The alternative, in section 110(3), provides that where the relevant industrial instruments governing the employment relationship do not provide for payment in lieu, the entitlement may be cashed out only in the circumstances described in section 110(4).

  1. [34]
    The question of whether this absolute entitlement to thirteen weeks paid long service leave as at eight years continuous service may be cashed out for ‘existing employees’ is silent in the Enterprise Agreement. As such, section 110(3) is the relevant provision in this case.

  1. [35]
    It then follows that under section 110(4), I must consider whether I am satisfied that the Applicant has demonstrated either compassionate or financial hardship grounds.

  1. [36]
    Section 95 of the Act states that the entitlement to long service leave requires an employee to complete ten years continuous service at which time they can access such leave; although an employee who has completed at least seven years continuous service is entitled to a proportionate payment for long service in certain circumstances. This is certainly relevant to the category of ‘new employees’ referenced at Clause 20.1 (b) of the Enterprise Agreement but, for the reasons outlines above, is not foundational to the determining the question of payment for the absolute entitlement to long service leave after eight years’ service for ‘existing employees’.

  1. [37]
    Having established there is an absolute entitlement to thirteen weeks long service leave as at eight years continuous service for ‘existing employees’, and noting that the Enterprise Agreement is silent as to whether or how this entitlement can be cashed out, the Act specifies that “an employee may be paid for all or part of an entitlement to long service leave instead of taking the leave…” if the payment is ordered by the Commission “…on the ground of financial hardship.”

  1. [38]
    I am satisfied that the Applicant meets the test for financial hardship, with reference to the financial statements and submissions made to the Commission on this point. In particular, the Applicant’s undated letter attached to the application (referenced at paragraph 5 above) describes the context under which the application has been made.

Decision

  1. [39]
    Having carefully considered the respective submissions of the Applicant and the Respondent, and all the material before me in this matter, I am persuaded that the tests of entitlement, access to payment in lieu of taking the leave and grounds have all been met.

  1. [40]
    For these reasons, the application is granted.

Order

  1. Application granted.
  2. Pursuant to s 580 of the Act, all documents relevant to the matter be withheld from release or search absolutely or until further order of the Commission.

Close

Editorial Notes

  • Published Case Name:

    Paul Joldescu v Dyno Nobel Asia Pacific Pty Ltd

  • Shortened Case Name:

    Joldescu v Dyno Nobel Asia Pacific Pty Ltd

  • MNC:

    [2019] QIRC 135

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    13 Sep 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
Help

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.