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- Unreported Judgment
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
W v K  QIRC 036
Application for payment instead of taking long service leave
5 March 2020
On the papers
INDUSTRIAL LAW – Payment for long service leave in lieu of taking long service leave - s 110 of the Industrial Relations Act 2016 (Qld) - whether applicant had an entitlement to long service leave – Compassionate grounds – whether applicant has sufficient compassionate grounds - Application dismissed.
Industrial Relations Act 2016 (Qld), s 95, s 96 and s 110
Mr E v A Transport Company  QIRC 16
Reasons for Decision
- Mr W is currently employed on a full-time basis by K. The Applicant commenced employment with K on 21 September 2004, as a Leading Hand.
- Mr W filed an application on 6 February 2020 for payment instead of taking long service leave. This application was made pursuant to ss 95(2)(a) and 110(1) of the Industrial Relations Act 2016 (Qld) ("IR Act").
- Section 95(2)(a) provides that an employee is entitled to long service leave on full pay where the employee has completed 10 years continuous service. Additionally, s 110(1) provides that an employee may be paid for all or part of an entitlement to long service leave where the Commission is satisfied the payment should be made on compassionate grounds or on the ground of financial hardship.
- Mr W has completed 10 years of continuous service on 1 May 2014. Accordingly, he has an entitlement to long service leave pursuant to s 95(a) and (2) of the IR Act.
- Mr W applies for the payment of the equivalent of 200 hours of long service leave on compassionate grounds pursuant to s 110(4)(a) of the IR Act.
- K opposes Mr W's application only on the ground that his compassionate reasons are "unlikely to meet the legislative requirements and criteria of compassionate or financial hardship".
- The general principle to be applied in cases of both financial hardship and compassion is that the "applicant is experiencing some pressing circumstance which can be alleviated by the payment of long service leave rather than taking the leave".
- For the reasons referred to below, I have concluded that payment of long service leave entitlement should not be made to Mr W.
- Section 95 of the IR Act provides for an entitlement to long service leave in the following terms:
95 Entitlement—employees other than seasonal employees
- (1)This section applies to an employee, other than a seasonal employee.
For provisions applicable to seasonal employees, see subdivisions 7 and 8.
- (2)The employee is entitled to long service leave, on full pay, of –
- (a)if the employee has completed 10 years continuous service - 8.6667 weeks; and
- (b)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.
- Section 110 of the IR Act provides for the payment of a long service leave entitlement as follows:
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.
- Pursuant to section 95(2)(a) of the IR Act, an employee is entitled to long service leave on full pay where the employee has completed 10 years of continuous service. As stated above, Mr W has satisfied this requirement, having completed 10 years of continuous service as at the date of the application filed in the Industrial Registry.
- Section 110(1) of the IR Act allows for an employee to be paid for all or part of an entitlement to long service leave instead of taking the leave under subsection (2) or (3).
- Mr W's employment is covered by the Manufacturing and Associate Industries and Occupations Award 2010 ("Award"). The Award does not deal with long service leave. No other statutory instrument relevantly applies to the applicant's employment. As the Award does not provide for Mr W to be paid for all or part of the entitlement, section 110(2) of the IR Act is not satisfied and cannot be relied upon.
- Section 110(3) of the IR Act allows for an employee to be paid for all or part of the long service leave entitlement if the payment is ordered by the Commission on application by the employee. Section 110(4) of the IR Act provides the Commission may order the payment only if satisfied the payment should be made on compassionate or financial hardship grounds.
- What constitutes compassionate grounds or financial hardship is not defined by the legislation. The Explanatory Notes do not offer any further assistance regarding the definition of compassionate grounds.
- The question of what constitutes compassionate grounds was considered in Mr E v A Transport Company. Fisher IC relevantly stated:
 The Registered Collective Agreement does no more than provide that an application can be made to the Commission for the cashing out of long service leave and the grounds upon which such an application can be made. Neither the Registered Collective Agreement nor the Act defined the terms "compassionate" or "financial hardship". The term "compassion" is defined by the Macquarie Dictionary, Fifth edition, as "a feeling of sorrow or pity for the sufferings or misfortunes of another; sympathy". The Commission accepts that this definition should not be rigidly applied as cases of compassion are many and varied, however, to be successful the compassionate grounds must fall broadly within that meaning.
- The compassionate grounds relied on by Mr W were described by him as follows:
These funds have been requested by myself for compassionate purposes. My wife was diagnosed with a Grade 4 Deep tissue melanoma and since has had it removed from her face and is currently in for scans every 3 months checking for reoccurrence. She is turning 50 this March and has booked a trip away for her Birthday with the family, I want to pay for the holiday complete and not have to worry about limited funds. This is our first every overseas trip and would love to have some great memories to remember.
- Whilst one has sympathy for Mr W and his wife with respect to her recent diagnosis and medical procedure, I note that the extent of the information provided by Mr W is that following the procedure, his wife is being reviewed every 3 months. Mr W does not seek the payment of the entitlement with respect to his wife's diagnosis or the costs associated with the subsequent medical procedure.
- Rather, he seeks the payment of the entitlement in order to pay, in full, for an overseas holiday with his family to celebrate his wife's birthday. Whilst the overseas holiday may be an important and/or special trip for Mr W's family unit to take in order to celebrate his wife's birthday, it does not appear to be a pressing circumstance nor is it taken for reasons that elicit feelings of sorrow or pity or sympathy.
- I am not satisfied that the grounds for the payment relied on by Mr W fall within the meaning of compassionate grounds for the purpose of s 110(4)(a) of the IR Act.
- The application is refused.
- The application contains personal information relating to Mr W and his wife. Accordingly, I will make orders pursuant to s 580(6) of the IR Act, that the reasons be published on the condition that the parties' names be anonymised within the reasons.
- Mr W's application for payment instead of taking long service leave is dismissed.
- Published Case Name:
W v K
- Shortened Case Name:
W v K
 QIRC 36
Member Hartigan IC
05 Mar 2020