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Queensland Judgments
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  • Unreported Judgment

Perrett v State of Queensland

 

[2019] QIRC 154

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Perrett v State of Queensland (Queensland Police Service)[2019] QIRC 154

PARTIES:

Perrett, Andrew

(Applicant)

v

State of Queensland (Queensland Police Service)

(Respondent)

CASE NO:

EC/2019/528

PROCEEDING:

Application for payment instead of taking long service leave

DELIVERED ON:

22 October 2019

CONFERENCE DATE:

4 October 2019

MEMBER:

Merrell DP

HEARD AT:

Brisbane and on the papers

ORDER:

The application for payment instead of taking long service leave is dismissed

CATCHWORDS:

INDUSTRIAL LAW – payment for long service leave instead 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 s110

Police Service Administration Act 1990 (Qld), s2.5A

Public Service Act 2008 (Qld), s 54

Queensland Police Service Employees Award - State 2016, cl 23

APPEARANCES:

Mr A. Perrett, the Applicant.

Ms M Swindells of the Public Safety Business Agency for the State of Queensland (Queensland Police Service).

Reasons for Decision

Introduction

  1. [1]
    Mr Andrew Perrett is currently employed in the Queensland Police Service as a police officer and has attained the rank of Senior Constable.

  1. [2]
    Senior Constable Perrett has been employed by the State of Queensland since 2011 and is employed on a full-time basis.

  1. [3]
    By application filed on 23 September 2019, Senior Constable Perrett made application for payment instead of taking long service leave. Senior Constable Perrett's application was made pursuant to s 110 of the Industrial Relations Act 2016 ('the Act').

  1. [4]
    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.

  1. [5]
    In his application, Senior Constable Perrett states that he commenced employment with his employer on 15 May 2011 and claims that the date he became entitled to take long service leave was 15 May 2018.

  1. [6]
    Senior Constable Perrett applies for the payment of the equivalent of 577.08 hours of long service leave.

  1. [7]
    The State of Queensland opposes Senior Constable Perrett'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. The position taken by the State of Queensland is that Senior Constable Perrett does not have an entitlement to long service leave because he does not have 10 years continuous service.

  1. [8]
    Having regard to the position taken by the State of Queensland in respect of Senior Constable Perrett's application, I held a conference between the parties on 4 October 2019. During that conference, I indicated to Senior Constable Perrett that I would give him the opportunity to provide written submissions as to why he has an entitlement to long service leave within the meaning of s 110(1) of the Act. Senior Constable Perrett provided written submissions in support of his claim. The State of Queensland also provided written submissions opposing his claim. I indicated to the parties I would decide the matter on the papers.

  1. [9]
    The question for my determination it is whether Senior Constable Perrett has an entitlement to long service leave within the meaning of s 110(1) of the Act.

  1. [10]
    In my view, Senior Constable Perrett does not have such an entitlement.
  2. [11]
    My reasons follow.

Section 110 of the Act

  1. [12]
    Section 110 of the Act provides:

110Payment 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 -

  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. 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.
  2. 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.
  1. 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.
  2. 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).

The parties' submissions

  1. [13]
    In his submissions, Senior Constable Perrett refers to Directive 11/18 Minister for Industrial Relations Directive: Long Service Leave ('Long Service Leave Directive') and, in particular, refers to cl 24 of that directive.

  1. [14]
    Clause 24 of the Long Service Leave Directive provides:

24Taking pro rata long service leave after 7 years

24.1.Subject to clause 9.1, employees are entitled to take pro rata long service leave after seven years continuous service. See clause 21 for payment on termination after seven years continuous service.

  1. [15]
    Senior Constable Perrett submits that the Long Service Leave Directive provides that '…we are entitled to access the leave at 7 years…'. As I understand his submissions, by the reference to 'we', Senior Constable Perrett is referring to police officers employed under the Police Service Administration Act 1990.

  1. [16]
    The State of Queensland submits that Senior Constable Perrett's entitlement to long service leave is governed by the Queensland Employment Standards contained in the Act and as referred to in the Queensland Police Service Employees Award – State 2016 ('the Award'). The State submits that under the Queensland Employment Standards, an employee only has an entitlement to long service leave after seven years continuous service on the termination of the employee's employment in particular circumstances, and that otherwise, an employee will only have an entitlement to long service leave once he or she has completed 10 years continuous service.

  1. [17]
    The State submits that the Long Service Leave Directive has no application to Senior Constable Perrett, and as a consequence, he does not have an entitlement to long service leave because he does not have 10 years continuous service.

Does Senior Constable Perrett have an entitlement to long service leave?

  1. [18]
    The Queensland Employment Standards are contained in ch 2, pt 3 of the Act. Division9 of pt 3 deals with long service leave and that Division contains s 95.

  1. [19]
    Section 95 of the Act provides:

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.

  1. Long service leave is exclusive of a public holiday that falls during the period of the leave.
  2. 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.
  3. 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.

  1. [20]
    The Award applies to Senior Constable Perrett. Clause 23 of the Award deals with long service leave and provides:

  1. Long service leave, including for casual employees, is provided for in Division 9 of the QES. Clause 23(b) supplements the QES.
  2. 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.

  1. [21]
    The Long Service Leave Directive is made under s54 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 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.

  1. [22]
    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 Perrett is employed under the Police Service Administration Act 1990.

  1. [23]
    Senior Constable Perrett is not employed as a public service officer or as a tenured general employee under the Public Service Act 2008. As a consequence, the Long Service Leave Directive does not apply to or cover Senior Constable Perrett.

  1. [24]
    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 as supplemented by cl 23(b) of the Award;

  • 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 service; however, if the police officer's service is 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, in circumstances where the police officer's service is continuing.

  1. [25]
    For the above reasons, Senior Constable Perrett does not have an entitlement to long service leave within the meaning of s 110(1) of the Act because Senior Constable Perrett does not have 10 years continuous service.

Conclusion

  1. [26]
    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.

  1. [27]
    The only issue regarding senior Constable Perrett's application for payment instead of taking long service leave is whether he has an entitlement to long service leave in circumstances where he does not have 10 years continuous service.

  1. [28]
    For the reasons given, Senior Constable Perrett does not have an entitlement to long service leave within the meaning of s 110(1) of the Act.

  1. [29]
    Senior Constable Perrett's application for payment instead of taking long service leave is dismissed.

I certify that the preceding 29 paragraphs are a true copy of the Reasons for Decision of Deputy President Merrell.

J.W. MERRELL, Deputy President: ………………………………

(Signature)

Dated: 22 October 2019

Close

Editorial Notes

  • Published Case Name:

    Andrew Perrett v State of Queensland (Queensland Police Service)

  • Shortened Case Name:

    Perrett v State of Queensland

  • MNC:

    [2019] QIRC 154

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    22 Oct 2019

Appeal Status

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