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  • Unreported Judgment

Martin v Cannon Hill Services Pty Ltd

 

[2020] QIRC 57

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Martin v Cannon Hill Services Pty Ltd [2020] QIRC 057

PARTIES: 

Jack Kenneth Martin

(Applicant)

v

Cannon Hill Services Pty Ltd (ABN 13 095 396 866)

(Respondent)

CASE NO:

EC/2020/259

PROCEEDING:

Application for payment instead of taking long service leave

DELIVERED ON:

17 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) - whether applicant had an entitlement to long service leave

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 95, s 96 and s 110

Industrial Relations Act 1999 (Qld), s 43 and s 53

Reasons for Decision

Introduction

  1. [1]
    Mr Jack Kenneth Martin seeks an order that his employer pay him an amount equivalent to his long service leave entitlement instead of taking the leave. The application was filed on 7 April 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]
    Mr Martin commenced employment with Cannon Hill Services Pty Ltd (ABN 13 095 396 866) ("Cannon Hill Services") on 16 June 2010. Mr Martin states that he has taken three months off work on medical grounds, commencing on 6 April 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.[1] Additionally, section 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.[2]
  1. [4]
    In his application Mr Martin states that he commenced employment with his employer on 16 June 2010 and the date he will become entitled to long service leave is 16 June 2020. Mr Martin applies for payment of a proportionate amount of long service leave, namely, the equivalent of 7.9 weeks of long service leave.
  1. [5]
    On or about 3 April 2020, Mr Martin applied for, and was subsequently granted, a period of paid leave from his employment for a three-month period on the basis of medical grounds. Accordingly, Mr Martin remains in employment with Cannon Hill Services.
  1. [6]
    The question for my determination is whether Mr Martin has an entitlement to long service leave within the meaning of s 110(1) of the IR Act.
  1. [7]
    For the reasons referred to below, I have concluded that Mr Martin does not have such an entitlement.

Relevant legislation

  1. [8]
    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. (3)
    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.

  1. [9]
    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. (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. (2)
    The payment may be made if –
  1. (a)
    a relevant industrial instrument or federal industrial instrument provides for the employee to be paid for all or part of the entitlement; and
  1. (b)
    the employee and employer agree by a signed agreement the payment may be made; and
  1. (c)
    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. (a)
    on compassionate grounds; or
  1. (b)
    on the ground of financial hardship.

Consideration

  1. [10]
    Mr Martin's employment is covered by the Australian Country Choice (Slaughtering and Boning Operations) Enterprise Agreement 2015 ("the Enterprise Agreement"). Clause 36.0 of the Enterprise Agreement deals with long service leave and provides:  

36.0 Long Service Leave

 An Employee other than a casual Employee is entitled to long service leave with pay in respect of continuous service with the Company as provided in the Industrial Relations Act (QLD) 1999 as at the time of lodgement of this Agreement.

 A summary of an Employee's Long Service Leave entitlement is available from the Human Resources department.

 Long service leave is exclusive of annual leave but is inclusive of all other holidays occurring during the taking of any period of long service leave.

 Employees will not be entitled to engage in any other employment for hire or reward whilst you are on long service leave.

  1. [11]
    The Enterprise Agreement provides that a relevant employee is entitled to take long service leave in accordance with the Industrial Relations Act 1999 (Qld) ("IR Act 1999"). The relevant provisions in the IR Act 1999 are ss 43 and 53. The equivalent provisions under the IR Act are ss 95 and 110.
  1. [12]
    No other statutory instrument relevantly applies to the Applicant's employment.
  1. [13]
    Pursuant to section 43(2)(a) of the IR Act 1999, an employee is entitled to long service leave on full pay where the employee has completed 10 years continuous service.[3] The equivalent provision in the IR Act is section 95(2)(a).[4] At the time of the application, Mr Martin had not completed 10 years continuous service, rather, Mr Martin had completed 9 years, 8 months and 23 days of continuous service.
  1. [14]
    Section 43(3) of the IR Act 1999[5] provides that an employee who has completed less than 10 years' service but at least 7 years of continuous service is entitled to a proportionate payment for long service leave on the termination of the employee's service.
  1. [15]
    Mr Martin is not entitled to a proportionate payment for long service leave pursuant to s 43(3) of the IR Act 1999[6] because his employment is ongoing and the employment has not been terminated.
  1. [16]
    Mr Martin does not have an entitlement to long service leave within the meaning of s 110(1) of the IR Act, as he has not completed 10 years of continuous service.

Conclusion

  1. [17]
    I have determined that Mr Martin does not have an entitlement to long service leave within the meaning of s 110(1) of the IR Act.
  1. [18]
    Mr Martin's application for payment instead of taking long service leave is dismissed.

Footnotes

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

[2] Ibid s 110(1).

[3] Industrial Relations Act 1999 (Qld) s 43(2)(a).

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

[5] See Industrial Relations Act 2016 (Qld) s 95(3) for equivalent provision.

[6] Ibid. 

Close

Editorial Notes

  • Published Case Name:

    Jack Kenneth Martin v Cannon Hill Services Pty Ltd

  • Shortened Case Name:

    Martin v Cannon Hill Services Pty Ltd

  • MNC:

    [2020] QIRC 57

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    17 Apr 2020

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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