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- Unreported Judgment
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Quilligan v UNITINGCARE COMMUNITY  QIRC 188
Application for payment instead of taking long service leave
11 December 2019
On the papers
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
Industrial Relations Act 2016 (Qld) s 95, s 101, s 103, s 110
Dyno Nobel Central and South Queensland Operations Enterprise Agreement 2017
UNITINGCARE COMMUNITY Enterprise Agreement 2012 - 2014
- On 19 November 2019, Ms Lauren Quilligan (Applicant) filed with the Industrial Registrar an application pursuant to s 110 of the Industrial Relations Act 2016 (Qld) (the IR Act) in which she sought payment instead of taking long service leave on compassionate grounds (the application).
- The employer was identified as UNITINGCARE COMMUNITY A.B.N. 28 728 322 18 (Respondent).
- The Applicant indicated at Parts 4.1 and 4.2 of the application that she had commenced employment with the Respondent on 6 November 2012 and that she had become entitled to take long service leave on 6 November 2019.
- Further, the Applicant stated at Parts 4.3 and 4.4 that she was applying for 66.33 hours of long service leave on compassionate grounds.
- Attached to that application, the Applicant provided a variety of materials detailing the extent of the financial hardship experienced and the significant efforts she had already undertaken to attempt to ameliorate her situation.
- 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:
- (a)The Applicant’s present entitlement to long service leave;
- (b)The gross and net monetary value of the long service leave applied for; and
- (c)The title of the Industrial Instruments which apply to the Applicant (i.e. Award, Certified Agreement).
- In correspondence dated 22 November 2019, the Respondent submitted that:
- The Applicant had commenced employment with the Respondent on 23 July 2013;
- The Applicant is employed part-time;
- The Applicant’s accrued long service leave balance as at 22 November 2019, is 167 hours, equivalent to 22 days or approximately 4 weeks;
- The monetary value of the amount of long service which the Applicant is currently entitled to $6,142.87 gross;
- The “UnitingCare Professional Administration enterprise agreement (sic)” applies to the Applicant’s employment;
- The award agreement is the “UnitingCare Community 2012 – 2014 agreement”; and
- The Applicant is ineligible for long service leave, as she has not completed 7 years of continuous service due to a 16 week unpaid absence from 3 September 2013 to 9 December 2013.
- The Respondent’s submission in response to the Directions Order dated 20 November 2019 was deficient in a number of respects. The Respondent is a party to numerous industrial instruments. The precise names of each of the relevant industrial instruments provided by the Respondents, in accordance with Order 1(f), were not accurate. As such, at that stage, it was impossible to discern which industrial instruments related to the Applicant. I accept that this was an innocent mistake. However, this Commission seeks to deal with long service payments as expeditiously as possible, as the applicants are often in dire financial circumstances. Such delays can have significant impacts upon Applicants. The Respondent also failed to comply with Order 1(e), in that they did not provide the gross and net monetary value of the amount of long service leave applied for. The first of those deficiencies was later addressed by the Respondent. The latter was not, and forms part of the orders resulting from this decision.
- A Further Directions Order was issued on 25 November 2019, which required both parties to provide further information regarding the nature of any break taken by the Applicant in 2013, and required the Respondent to comply with the previous Directions Order. Those further directions required the Respondent’s compliance by 2 December 2019.
- The Respondent failed to comply with that Further Directions Order. Though a copy of the correct industrial instrument was supplied within time, they only provided a statement relating to the Applicant’s absence from work after additional prompting by way of email from my Associate after the date for compliance.
Respondent Further Submissions
- In their correspondence to the Industrial Registry dated 3 December 2019, the Respondent provided that during the relevant period in 2013, the Applicant was in fact a casual employee. The Respondent also supplied an ‘Hours report from the Payroll System for (the Applicant)’.
- In that correspondence the Respondent also confirmed that the Applicant had been employed since 6 November 2012, rather than 23 July 2013 as the Respondent had provided in their earlier submission.
- Regarding the Applicant’s absence in 2013, the Respondent submitted that the 16 week absence ‘exceeds the three months or less absence allowable for eligibility for Long Service on (the Applicant’s) anniversary of employment.’ No further context was provided as to the reason for that absence.
Applicant’s Further Submissions
- By way of correspondence to the Industrial Registry dated 3 December 2019, the Applicant provided the following submissions regarding her absence from work from 3 September 2013 until 9 December 2013 (though I note that the Applicant does not specifically agree with those dates):
- At the relevant times in 2013, the Applicant was a casual employee.
- The Applicant gave birth to a child on 4 September 2013.
- There was some complication with that birth, which required the Applicant to express breast milk regularly.
- The Applicant’s managers stated that they would be unable to guarantee that she would be able to express milk while on shift. As a result, the Applicant was no longer offered shifts as a casual employee, despite the Applicant’s ability and willingness to work.
- The Applicant regularly attended team meetings throughout that period, and accepted all shifts which were offered.
- The Enterprise Agreement prescribes the provision of long service leave, as follows (emphasis added):
8.7 Long Service Leave
Upon completion of 7 years of continuous service with (UnitingCare Community), employees shall be entitled to take long service leave with pay.
- The IR Act includes provisions regarding continuity of service for casual employees (emphasis added):
103 Continuity of service—casual employees
- (1)This section applies to a casual employee.
- (2)The employee’s service is continuous service with the employer even though—
- the employment is broken; or
- any of the employment is not full-time employment; or
- the employee is employed by the employer under 2 or more employment contracts; or
- the employee would, apart from this section, be taken to be engaged in casual employment; or
- the employee has engaged in other employment during the period.
- (3)However, the continuous service ends if the employment is broken by more than 3 months between the end of 1 employment contract and the start of the next employment contract.
- The IR Act also provides for payment in lieu of taking long service leave:
101 Other matters relating to the payment of long service leave
- (1)An employee and employer may agree on when, and the way in which, the employee will be paid for long service leave.
- (2)The commission may decide any matter relating to payment for long service leave that the employee and employer cannot agree on.
- (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.
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.
Entitlement to long service leave
- In Queensland, employees generally attain an entitlement to long service leave after 10 years of continuous service. However, there exist a number of enterprise agreements which provide the respective employees with more favourable long service leave entitlements than the minimum set out by the legislation. That is the case in this instance; the relevant enterprise agreement clearly provides that employees accrue an entitlement to long service leave after 7 years of continuous service. That is acknowledged throughout the Respondent’s submissions.
- The Respondent’s only contention is that while the Applicant was a casual employee in 2013, she took 16 weeks off from work. The Respondent submits that such a break from work interrupted the Applicant’s continuous service, and so the Applicant has not completed 7 years continuous service.
- The Applicant alleges that she was not offered further shifts during the relevant period in 2013 as she was required to express milk, and that she continued to accept any shifts offered. The Applicant’s allegations are certainly alarming. However, they are beyond the scope of this matter. Suffice is to say that the Applicant acknowledges that she was away from work in or around that period, though does not go so far as to accede to the Respondent’s precise timeframes.
- The IR Act at s 103(2) and (3) is instructive: a casual employee’s period of service continues despite breaks in employment, except where there is a break of more than 3 months between the end of 1 employment contract and the beginning of the next employment contract.
- The Respondent’s submissions, namely that a break for ‘a continuous period of 16 weeks … exceeds the three months or less absence allowable…’ seem to allude to that latter clause. However, the Respondent has missed a critical component of s 103(3); there must be a break between employment contracts.
- There is no indication from either party that the employment contract between the parties ceased for a period exceeding three months, or indeed at all. The Respondent merely contends that the Applicant did not work during that period, and then returned to work afterwards. Sometime later the Applicant transitioned to part-time, which has no bearing upon whether the continuity of service was interrupted.
- Taken at their highest, the Respondent’s factual allegations do not evidence a break in the employment contract. There is no evidence or allegation before me which indicates that the employment contract ended. The Respondent’s payroll clearly demonstrates that the Applicant worked in the same position immediately before and after the 16 week break. That does not evidence a cessation of the employment contract. Quite the opposite. A casual employee in this instance is defined to be ‘an employee who is employed more than once by the same employer over a period.’ It is entirely consistent with an ongoing casual employment contract that the Applicant would have periods where she does not work. Whether those gaps in employment resulted from the Applicant’s own decision, or were the result of some conduct of the Respondent as alleged by the Applicant, is irrelevant for the purposes of this matter.
- I find that the Applicant’s continuity of service was not interrupted due to her absence from work from 3 September 2013 until 9 December 2013, as there was no cessation of her contract of employment.
- As such, I find that the Applicant became entitled to long service leave on 6 November 2019, being 7 years after the Applicant commenced employment with the Respondent.
Payment in lieu of taking long service leave
- The IR Act at ss 101 and 110 above provides a number of pathways to providing an employee payment in lieu of taking long service leave.
- The relevant process in this instance is found in ss 110(1), (3) and (4). Summarily, where an employee’s relevant industrial instrument does not provide for payment in lieu, the Commission may order that the payment be made on compassionate or financial hardship grounds, upon application by that employee to this Commission.
- Neither party submits that the industrial instruments which apply to the Applicant provide for the payment in lieu of taking long service leave. Nor has my inspection of those materials uncovered such a clause. Therefore, in determining this application I must consider whether there are compassionate or financial hardship grounds afflicting the Applicant.
- The Applicant has filed in the industrial registry a variety of materials including payslips, legal bills, bank statements and the like. I do not intend to extract any of that sensitive and personal financial material here.
- 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 her application of 19 November 2019 to this Commission, the Applicant sought payment in lieu of taking long service leave. She provided that her employment with the Respondent commenced on 6 November 2012.
- The Respondent sought to resist that application on the basis that the Applicant had been away from work for 16 weeks in 2013. The Applicant acknowledged some period of absence from work. She also provided some context as to that period of absence, including some disturbing allegations regarding the non-provision of shifts due to her requirement to express milk. However, the substance of said allegations are beyond the scope of this matter.
- Neither party has contended that said break in employment resulted from a termination or resignation, or a cessation in the employment contract in any way. As such, the legislation at s 103 is clear; the Applicant’s period of service continued uninterrupted.
- Therefore, in combination with the relevant enterprise agreement, the Applicant accrued an entitlement to long service leave on 6 November 2019.
- The Applicant as also supplied a variety of materials, which evidence to my satisfaction that the long service leave entitlement should be paid in lieu on compassionate grounds.
- I therefore grant the application, though require further details from the Respondent before making a final order for payment.
- Per paragraph 8 above, the Respondent has not supplied the relevant information, as required by the Directions Order, for a final order to be made for a specific amount to be paid to the Applicant. As such I will require the Respondent to comply with the Directions Order of 20 November 2019, namely a statement setting out the value of the long service leave applied for by the Applicant.
- I order accordingly.
- The application is granted.
- The Respondent is to file in the Industrial Registry and serve upon the Applicant a statement containing the gross and net monetary value of the amount of long service leave applied for by the Applicant, and confirmation that the monetary value is the cash equivalent of long service leave represented in hours, days and weeks, by 4:00pm on 13 December 2019.
- The Applicant is to provide to the Industrial Registry and serve upon the Respondent a statement in reply if the Applicant disagrees with the information provided in Order 2, by 4:00pm on 16 December 2019.
- 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.
 Industrial Relations Act 2016 (Qld) s 95.
 See, eg, Dyno Nobel Central and South Queensland Operations Enterprise Agreement 2017.
 See, eg, the Respondent’s proposed date of the Applicant’s entitlement for long service leave being early 2020.
 Industrial Relations Act 2016 (Qld) s 102.
- Published Case Name:
Lauren Quilligan v UnitingCare Community
- Shortened Case Name:
Quilligan v UnitingCare Community
 QIRC 188
11 Dec 2019