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

Johns v Flight Centre Travel Group Limited

 

[2020] QIRC 55

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Johns v Flight Centre Travel Group Limited [2020] QIRC 055

PARTIES: 

Emily Johns

(Applicant)

v

Flight Centre Travel Group Limited (ABN 25 003 377 188)

(Respondent)

CASE NO:

EC/2020/235

PROCEEDING:

Application for payment instead of taking long service leave

DELIVERED ON:

14 April 2020

MEMBER:

HARTIGAN IC

HEARD AT:

On the papers

ORDER:

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

CATCHWORDS:

INDUSTRIAL LAW – Payment for long service leave in lieu of taking long service leave – s 110 of the Industrial Relations Act 2016 (Qld) – continuity of service – periods of unpaid parental leave – whether applicant has an entitlement to long service leave

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 95, s 96, s 110, s 130, s 131, s 134

Flight Centre Enterprise Agreement 2018, cl 25.1, cl 25.2, cl 25.3

Reasons for Decision

Introduction

  1. [1]
    Ms Emily Johns seeks an order that her employer pay her an amount equivalent to her long service leave entitlement instead of taking the leave. The application was filed on 30 March 2020 and was made pursuant to sections 95(2)(a) and 110(1) of the Industrial Relations Act 2016 (Qld) ("the IR Act").
  1. [2]
    Ms Johns commenced employment with Flight Centre Travel Group Limited (ABN 25 003 377 188) ("Flight Centre") on 25 January 2010.  Ms Johns states that she was stood down from her employment in or about March 2020.
  1. [3]
    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 that the payment should be made on compassionate grounds or on the ground of financial hardship.
  1. [4]
    In her application, Ms Johns states that she commenced employment with Flight Centre on 25 January 2010. Ms Johns applies for payment of the equivalent of 35.678 days of long service leave.  Ms Johns applies for the payment of long service leave on the basis of financial hardship, as her employer has stood her down from her duties.
  1. [5]
    Flight Centre objects to Ms Johns' application on the basis that Ms Johns is not entitled to long service leave, as she has not been employed for 10 years of continuous service.  In support of its position, Flight Centre refers to periods of unpaid leave taken by Ms Johns, which it submits cannot be included when determining the period of continuous service. Ms Johns took periods of unpaid parental leave between the following dates:
  1. (a)
    10 October 2016 to 5 March 2018 (approximately 17 months in total); and
  1. (b)
    20 August 2018 to 7 October 2019 (approximately 13.5 months).
  1. [6]
    Flight Centre relies on the meaning of "service" and "continuous service" pursuant to s 22 of the Fair Work Act 2009 (Cth) ("FW Act"), asserting that Ms Johns' unpaid parental leave does not count as service and does not contribute towards the length of the employee's continuous service. Subsequently, the Respondent submits that Ms Johns will become entitled to payment of a long service leave entitlement on 8 August 2022.
  1. [7]
    The question for my determination is whether Ms Johns has an entitlement to long service leave within the meaning of s 95(2) of the IR Act. Specifically, whether Ms Johns has completed 10 years "continuous service" as referred to in s 95(2)(a).
  1. [8]
    For the reasons referred to below, I have concluded that Ms Johns does not have such an entitlement.

Flight Centre's submissions

  1. [9]
    In compliance with the directions, Flight Centre filed submissions with respect to the objection it had to Ms Johns' application. The basis of Flight Centre's objection can be summarised by reference to the following grounds:[1]
  1. any period of unpaid leave does not constitute service, pursuant to s 22(2)(b) of the FW Act; and
  1. an excluded period does not break continuity of service but does not count towards the length of the employee's continuous service, pursuant to s 22(3) of the FW Act.
  1. [10]
    Flight Centre had attached to its submissions documents which confirmed the periods of unpaid leave taken by Ms Johns.
  1. [11]
    The Directions Order issued by the Commission provided Ms Johns with an opportunity to reply to Flight Centre's objections and supporting submissions by no later than 4pm on 6 April 2020. Ms Johns did not file any document in reply.  Relevantly, Ms Johns was given an opportunity to dispute the length (or otherwise) of the period of unpaid leave referred to by Flight Centre but did not do so. Accordingly, I have accepted that Ms Johns did take the period of time identified by Flight Centre as unpaid approved leave.

Relevant legislation

  1. [12]
    Section 95 of the IR Act relevantly provides for an entitlement to long service leave in the following terms:

95 Entitlement—employees other than seasonal employees

  1. (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. (2)
    The employee is entitled to long service leave, on full pay, of –
  1. (a)
    if the employee has completed 10 years continuous service - 8.6667 weeks; and
  1. (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.

  1. [13]
    Section 95 identifies that the entitlement to long service leave by reference to the period of the employee's continuous service. The phrase "continuous service" is referred to in s 93 of the IR Act, relevantly, as follows:

93 Definitions for division

In this division—

"continuous service ", of an employee, means—

  1. (a)
    in section 107 —the period of continuous service the employee is taken to have had with an employer under section 107(2)(b) ; or
  1. (b)
    elsewhere—the employee's continuous service  with the same employer, whether wholly in the State or partly in and partly outside the State.

  1. [14]
    Section 107(2)(b), which is referred to in s 93 of the IR Act, is not relevant to my consideration of this matter. The phrase "continuous service" is considered further within Chapter 2[2] of the IR Act.
  1. [15]
    Chapter 2, Part 4 of the IR Act deals with continuity of service and employment. Section 131(1) of the IR Act explains how Part 4 is to be applied as follows:

131 How part applies

  1. (1)
    This part applies for working out an employee's rights and entitlements under this chapter, an applicable industrial instrument or a federal industrial instrument by prescribing when the employee's continuity of service is not broken.

  1. [16]
    Section 131 of the IR Act falls within Chapter 2, as do the long service leave provisions.  Accordingly, the provisions within Part 4[3] can be used to determine continuity of service for the purposes of determining an employee's right and entitlement to long service leave.  
  1. [17]
    Section 134 provides how continuity of service is to be determined as follows:

134 Continuity of service—generally

  1. (1)
    Service with a partnership and an employer who was, or becomes, a member of the partnership is taken to be continuous service with the same employer.
  1. (2)
    An employee's continuity of service with an employer is not broken if the employee's service is temporarily lent or let on hire by the employer to another employer.
  1. (3)
    An employee's continuity of service with an employer is not broken by an absence, including through illness or injury—
  1. (a)
    on paid leave approved by the employer; or
  1. (b)
    on unpaid leave approved by the employer.
  1. (4)
    An employee's continuity of service with an employer is not broken if—
  1. (a)
    the employee's employment is terminated by the employer or employee because of illness or injury; and
  1. (b)
    the employer re-employs the employee; and
  1. (c)
    the employee has not been employed in a calling, whether on the employee's own account or as an employee, between the termination and the re-employment.
  1. (5)
    An employee's continuity of service with an employer is not broken if—
  1. (a)
    the employee's employment is terminated by the employer or employee; and
  1. (b)
    the employer re-employs the employee within 3 months after the termination.
  1. (6)
    An employee's continuity of service with an employer is not broken if—
  1. (a)
    the employee's employment is interrupted or terminated by the employer with intent to avoid an obligation under this part, an applicable industrial instrument or employment contract; or
  1. (b)
    the employee's employment is interrupted or terminated by the employer as a direct or indirect result of an industrial dispute, and the employer re-employs the employee.
  1. (7)
    An employee's continuity of service is not broken if—
  1. (a)
    the employee's employment is interrupted or terminated by the employer because of slackness of trade or business; and
  1. (b)
    the employer re-employs the employee.
  1. (8)
    Service with a corporation and any of the corporation’s subsidiaries is taken to be continuous service with the same employer.
  1. (9)
    However, a period for which the employee is away from work under subsection (3)(b), (4), (5), (6)(b) or (7) is not service under this part unless—
  1. (a)
    this Act or an applicable industrial instrument provides otherwise; or
  1. (b)
    the commission directs otherwise.
  1. (10)
    In this section—

"subsidiary" has the meaning given by the Corporations Act.

"terminate" includes stand down.

  1. [18]
    "Service" is defined in s 130 of the IR Act[4] as "includes employment".

Consideration

  1. [19]
    Ms Johns' employment is covered by the Flight Centre Enterprise Agreement 2018 ("the Enterprise Agreement"). Clauses 25.1, 25.2 and 25.3 of the Enterprise Agreement deal with long service leave and provide: 

25.1      Am I eligible for long leave?

All Team Members accrue long service leave in line with applicable State/Territory legislation. The Company provides 10 weeks per 10 year period of Continuous Service. If relevant State/Territory legislation differs from this entitlement, the Team Members in those states will receive whichever entitlement is greater.

25.2       When can I take long service leave?

Team Members are eligible to apply for a period of long service leave after 10 years of Continuous Service up to their accrued amount of 10 weeks' leave by giving 2 months' notice, or can take up to 4 weeks' leave by giving 1 months' notice. After a period of 10 years' service you continue to accrue 1 week per year of service and are able to take this accrual amount in line with above notice requirements.

25.3      Can I cash out my long service leave?

Team Members who are eligible to take a period of long service leave may cash out up to 3 weeks long service leave per annum or the amount allowed for in relevant State Legislation, whichever is greater, for reasons for financial hardship or health related reasons, by requesting to do so in writing to Human Resources or Payroll. (So long as this is allowed under the relevant State/Territory legislation).

  

  1. [20]
    The Enterprise Agreement provides that a relevant employee is entitled to take long service leave in accordance with the relevant State legislation. As noted above, the relevant provisions in the State legislation are ss 95 and 110 of the IR Act.
  1. [21]
    No other statutory instrument relevantly applies to the Applicant's employment.
  1. [22]
    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.[5]
  1. [23]
    Continuity of service may be broken by certain absences from work, which means time served prior to the absence will not be included when calculating future entitlements.
  1. [24]
    Flight Centre contends that Ms Johns is not entitled to long service leave as she has not completed 10 years of continuous service, as the periods during which Ms Johns has taken unpaid parental leave do not count towards the calculation of her length of service.
  1. [25]
    Section 134(3)(b) of the IR Act provides that an employee's continuity of service with an employer is not broken by an absence of unpaid leave approved by the employer. It follows, that Ms Johns' continuity of service with Flight Centre was not broken by her absence on unpaid but approved leave. This means that the period prior to the taking of the leave will be counted towards the calculation of Ms Johns' length of service.
  1. [26]
    However, s 134(9) of the IR Act operates to exclude a period of unpaid, approved leave during which an employee is away from work as service, under Part 4. Meaning, that the unpaid, approved parental leave taken by Ms Johns does not count as service with the consequence that Ms Johns does not accrue a long service leave entitlement during such a period.
  1. [27]
    For completeness, I note in the federal jurisdiction, periods of unpaid carers leave and unpaid parental leave,[6] in addition to a portion of sick leave without pay,[7] are accepted instances of unpaid leave for the purpose of s 22 of the FW Act.
  1. [28]
    At the time that Ms Johns filed this application, she had been employed for 10 years and approximately 2 months. However, by the operation of s 134(9) of the IR Act, the periods of unpaid approved leave taken by Ms Johns totalling approximately 30.5 months (or approximately 2.5 years) whilst not breaking the continuity of service, do not count as service for the purpose of calculating Ms Johns' entitlement to long service leave.
  1. [29]
    For these reasons, Ms Johns' periods of unpaid parental leave, whilst not breaking the continuity of service, do not count as a period of service under the IR Act.

Conclusion

  1. [30]
    I have determined that Ms Johns does not have an entitlement to long service leave within the meaning of ss 95(2) and 110 of the IR Act.
  1. [31]
    Ms Johns' application for payment instead of taking long service leave is dismissed.

Footnotes

[1] Respondent's submissions filed 2 April 2020.

[2] The long service leave provisions also fall within Part 4 of the Industrial Relations Act 2016 (Qld).

[3] Relevantly, s 134 of the Industrial Relations Act 2016 (Qld).

[4] Which provides for the definitions to Part 4.

[5] Industrial Relations Act 2016 (Qld) s 95(2)(a).

[6] See John Webster v Toni and Guy Port Melbourne Pty Ltd T/A Toni and Guy Port Melbourne [2010] FWA 4540, [10] and Explanatory Memorandum, Fair Work Bill 2008, 104 [105].

[7] Wales v 3 Point Motors Pty Ltd T/A 3 Point Motors [2012] FWA 3817, [29].

Close

Editorial Notes

  • Published Case Name:

    Emily Johns v Flight Centre Travel Group Limited

  • Shortened Case Name:

    Johns v Flight Centre Travel Group Limited

  • MNC:

    [2020] QIRC 55

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    14 Apr 2020

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.