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- Unreported Judgment
Hansen v Queensland QIRC 68
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Hansen v State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services)  QIRC 068
State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services)
Notice of Industrial Dispute
7 July 2017
22 June 2017
Industrial Commissioner Black
INDUSTRIAL DISPUTE – notice of industrial dispute – whether Queensland Employment Standards breached – whether the provisions of clause 20 of the Award were inconsistent with s 40 of the Industrial Relations Act 2016.
Industrial Relations Act 2016 s 40, s 261, s 262; Correctional Employees Award – State 2015; Queensland Corrective Services – Correctional Employees' Certified Agreement 2016.
- In his dispute, Mr Hansen challenges the manner in which his employer has been determining sick leave entitlements. It is Mr Hansen's contention that in determining sick leave entitlements by reference to clause 20(e)(ii) of the Correctional Employees Award – State 2015 (the Award), his employer is breaching the terms of the Queensland Employment Standards.
- In the dispute conference, Mr Hansen articulated his concerns in the following terms:
"…the award at s 20(e)(ii) prevents me from having the entitlement under the QES in 40, which is, at least 10 days sick leave on full pay. Keeping in mind that my full pay, is my ordinary hours, is 7.6, which we do get paid. You know, I have no problem, you know – basically, the way I see it is we work extended hours, basically, for – on a flexible arrangement to have additional days off. We are only paid at 7.6 per day or 76 hours a fortnight. So when we have the personal leave, to deduct leave from our balance as per what we were rostered on that day, prevents us from accessing the provision under the QES."
- The breach, according to Mr Hansen, arises from an inconsistency between clause 20(e)(ii) of the Award and s 40 of the Industrial Relations Act 2016 (IR Act). In Mr Hansen's submission the inconsistency falls within s 17 of the IR Act in that the application of the Award provisions produce a less favourable outcome to that mandated by s 40 of the IR Act. Section 17 of the IR Act reads as follows:
"Relationship between Queensland Employment Standards and other laws
The Queensland Employment Standards have effect despite an inconsistency with another law of the State, unless the other law provides an employee with a benefit that is at least as favourable for the employee as the Queensland Employment Standards."
- The Queensland employment standard relative to sick leave is set out in s 40 of the IR Act. This section is expressed in the following terms:
"Entitlement to sick leave
- (1)An employee is entitled to at least 10 days sick leave on full pay for each completed year of employment with an employer.
- (2)An employee’s entitlement to paid sick leave accumulates—
- (a)progressively during a year of employment according to the employee’s ordinary hours of work; and
- (b)from year to year.
- (3)Sick leave may be taken for part of a day.
1 An employee is ordinarily required to work for 7.6 hours on a particular day and on that day becomes sick after working 3 hours. The employee may take sick leave for the remaining 4.6 hours that the employee is unable to work because of the sickness.
2 An employee is ordinarily required to perform work for 38 hours a week over 5 days, but has come to an arrangement with the employer to work 9.5 hours a day for 4 days a week. If the employee is unable to work because of sickness on a day, the employee may take 9.5 hours sick leave, which equates to 1¼ days sick leave.
- (4)This section does not confer an entitlement or an additional entitlement in relation to employment before the commencement of this section.
- (5)In this section—
day, for an employee who is paid on the basis of the number of hours worked, means—
- (a)for an employee for whom an applicable industrial instrument provides sick leave—a day within the meaning of the instrument to the extent it relates to sick leave; or
- (b)otherwise—one-fifth of the number of the employee’s ordinary hours of work for a week, averaged over each completed 6 weeks of employment with the employer."
- Sick leave entitlements under the Award are prescribed in clause 20 which is reproduced hereunder:
"20. Personal leave
- (a)Personal leave is provided for in Division 6 of the QES and covers:
- (i)sick leave;
- (ii)carer's leave;
- (iii)bereavement leave; and
- (iv)cultural leave.
- (b)In addition to the provisions of Subdivision 2 of Division 6 of the QES an employee is entitled to use any sick leave to which they have an entitlement for carer's leave purposes.
- (c)An employee may also elect, with the consent of the employer, to take annual leave for carer's leave purposes.
- (d)An application for sick leave of more than 3 days is to be supported by a medical certificate or any other evidence that is acceptable to the employer.
- (e)Personal leave shall be debited from an employee's personal leave balance as follows:
- (i)An employee in the Field Supervisor stream - on the basis of 7.6 hours for each calendar day's absence from duty and on a pro rata basis for every part of a day.
- (ii)An employee in the General stream - on a time for time basis, in accordance with the employee's roster.
Note: Where a directive about sick leave or bereavement leave covers an employee, the provisions of the relevant directive apply to the employee to the extent it provides a more generous entitlement."
- It is Mr Hansen's submission that the effect of clause 20(e)(ii) in providing that sick leave shall be debited from his personal leave balance on "a time for time basis", is that he is unable to take sick leave on ten calendar days each year. This outcome is a product of his roster where he typically works either 8.5 ordinary hours or 10 ordinary hours per shift. Given that his maximum personal leave entitlement is 76 hours per annum, if sick leave is debited on a time for time basis, he may only be eligible for paid sick leave on eight days of the year (7 days x 10 hours sick pay and 1 day x 6 hours sick pay).
- It followed in Mr Hansen's view that the award provision, in operating to limit his taking of sick leave to only eight calendar days per year, was both inconsistent with, and less favourable than, the minimum standard of 10 days per year specified in s 40(1) of the IR Act.
- Mr Hansen's submission is not idly brought, however there are a number of reasons why his interpretation of the Award and the IR Act may not be accepted:
- (i)The provisions of the Award are not necessarily less favourable than the provisions of the Act;
- (ii)The terms of Directive 04/16: Sick Leave, endorse the practice of the employer;
- (iii)Note 2 to s 40(3) of the IR Act suggests that the employer's practice is not inconsistent with s 40(1);
- (iv)The definition of the word "day" included in s 40(5)(a) of the IR Act enables the application of clause 20(e)(ii) of the Award without inconsistency.
Is the benefit less favourable?
- An inconsistency between the minimum standards and the award provisions is permitted if the award provides the employee with a benefit that is at least as favourable. In other words there is no inconsistency unless the award provision disadvantages employees or is less favourable to employees.
- In approaching this question, Mr Hansen takes a very fine point. He accepts that the operation of clause 20(e)(ii) does not give rise to any financial disadvantage when compared to s 40(1) of the IR Act, and that the total number of hours of paid sick leave available is the same under each instrument. The only claimed disadvantage is that, under the award, Mr Hansen may not be able to access paid sick leave on ten discrete calendar days across the course of the year. It is arguable, I think, whether such a claimed disadvantage falls within the provisions of s 17 of the IR Act in circumstances where the over-riding purpose of sick leave is to provide a minimum level of financial protection for a worker in the event that he or she is unable to complete their normal work. Whether the remunerative benefit is spread over ten days or eight days may not amount to a material difference.
- It is also relevant that one of the purposes of clause 20(e)(ii) is to effect consistency between the sick leave provisions of the award and a rostering system which operates to maintain a concept of average weekly remuneration in circumstances where the total ordinary hours worked from week to week varies significantly. Under the rostering system, fluctuations which would otherwise occur in weekly pays are eliminated. The practice of debiting sick leave on a time for time basis preserves the averaging concepts for those weeks in which sick leave is taken.
- If clause 20(e)(ii) supports this purpose, then it seems to me that it is supporting a system of pay which is more likely than not supported by the majority of the workforce and is preferred by that majority to an alternative arrangement such as that proposed by Mr Hansen. Subjectively, therefore, clause 20(e)(ii) could be seen as a provision which is more favourable than any alternative arrangement said to be prescribed by s 40(1) of the IR Act.
- The likelihood of broad employee support for the current rostering arrangements is demonstrated by the provisions of both the Award and the certified agreement which impose obligations on the employer to consult with the union and employees directly affected when creating or amending rosters, and in limiting major or substantial change to rostering arrangements only in circumstances where the changes are supported by more than 50% of the affected workforce.
- Clause 7.4 of the directive endorses the conversion of a sick leave benefit of 10 days (refer Schedule 1) to an hours equivalent, while clause 7.5 provides an application consistent with clause 20(e)(ii) of the award.
"7.4 Leave prescribed in this Directive may be converted to an hourly basis for the purpose of applying, granting and recording of the leave. Leave is based on the number of hours that the employee would have worked. Schedule Two provides conversion formulas.
7.5 If an officer or employee is rostered to work a specific number of hours on a day and the employee is absent from duty on that day, or for part of it, the officer’s or employee’s sick leave account is to be reduced by the number of hours that the officer or employee was rostered to work on that day but did not work. This applies even where it means that the employee’s sick leave account is debited by a different number of hours than the employee’s daily hours (as defined by an Award or Agreement)."
How are the Act Provisions to be Construed?
- Section 40 (1) of the IR Act provides that "an employee is entitled to at least 10 days sick leave on full pay for each completed year of employment with an employer". "Full pay" is defined in Schedule 5 of the IR Act (Dictionary) to mean "payment in full for the time an employee is absent from work".
- The definition of "full pay" supports the use of the "time for time" method in determining the entitlement to sick pay on any one day. That is, if the employee is rostered to work for ten hours, and is absent from work for the duration of that shift, then he should be paid for the time that he was absent viz 10 hours.
- The key question to be answered however arises from the meaning to be given to the word "day" as it is used in s 40(1) of the IR Act. Mr Hansen's view on the matter is that the words "10 days" mean 10 calendar days and that an employee is entitled to paid leave on ten separate or discrete days during the course of any year.
- In the first instance, the interpretation of the IR Act provisions is to be found by giving the words used in the section their ordinary meaning. In particular, consideration is given to the expression of subsections (1), (3), and (5) of s 40.
- Subsection (3) makes clear that a sick leave entitlement can be calculated by reference to something less than a full day. Further, a note to the subsection explains in effect that it is possible to use up more than one day's entitlement to sick leave if the illness coincides with a work shift that is longer than a standard period of work:
"2 An employee is ordinarily required to perform work for 38 hours a week over 5 days, but has come to an arrangement with the employer to work 9.5 hours a day for 4 days a week. If the employee is unable to work because of sickness on a day, the employee may take 9.5 hours sick leave, which equates to 1¼ days sick leave."
- Under note 2 to s 40(3), it is permissible for more than one of the ten days sick leave available under s 40(1) to be used up if the illness coincides with a rostered shift longer than an average shift duration of 7.6 hours. As such, the note clearly contemplates an outcome wherein, across the course of a year, an employee might exhaust his or her sick leave entitlement in less than 10 calendar days. In the example shown, an employee taking the equivalent of 1¼ days sick leave on each occasion that he was unable to perform his rostered shift, would exhaust his annual entitlement over 8 calendar days.
- Subsection (5) of s 40 provides in effect that where an employee's sick leave entitlement is regulated by an industrial instrument, the word "day" as it is used in s 40(1) of the Act means "a day within the meaning of the instrument to the extent it relates to sick leave". This subsection applies to Mr Hansen whose entitlement to sick leave is regulated by clause 20 of the Correctional Employees Award – State 2015.
- While it is open to argument, it appears to me that the effect of s 40(5) of the IR Act is to allow the operation of clause 20(e)(ii) of the Award. This is the particular provision in the instrument which deals with determining the amount of sick leave to be paid in the event of an absence from work. It therefore relates to how the word "day" as it appears in section 40(1) should be construed.
- It follows that when s 40(5) of the IR Act adopts the meaning given to the word "day" by the relevant provisions of the Correctional Employees Award – State 2015, the section is adopting the application of clause 20(e)(ii).
- In my view, the terms of both s 40(3) and s 40(5) of the IR Act support a conclusion that clause 20(e)(ii) of the award is not inconsistent with the Queensland Employment Standards, and is not diluted or over-ridden to any extent by the provisions of s 40 of the IR Act. If there were any doubt about the reasoning supporting this conclusion, it is removed when regard is had to relevant extrinsic materials.
- Section 40(3) and s 40(5) were introduced into the Industrial Relations Act 1999 with effect from 27 June 2000 (Act 23 of 2000). Apart from numbering changes, and an alteration to the notes to s 40(3) to reflect the change from a 40 hour week to a 38 hour week, the provisions in the Industrial Relations Act 2016 remain in substantially the same form. The Explanatory Notes accompanying the June 2000 amendments to the Industrial Relations Act 1999 explain why the amendments were made.
- In terms of the current s 40(3), the notes state that the purpose of the new subsection was to provide:
"…that sick leave may be taken for part of a day when the employee is absent sick. The employee is to be paid sick leave for the period of absence and ordinary wages for the period worked. An employee is therefore not restricted to taking leave in full day periods. Examples are provided on how an employee can take sick leave for less than a full day and receive payment of ordinary pay for the remainder and on how sick leave applies where an employee works ordinary hours in excess of that employee’s average daily hours."
(Underlining is mine)
- It is clear from the Explanatory Notes that s 40 of the Act contemplates that more than one day of sick leave entitlement can be used in the event that a shift longer than average ordinary hours is rostered for the day the employee was ill and absent from work.
- In terms of the current s 40(5), the Explanatory Notes state that the amendments included a definition for the term "day" for the purposes of the current sections 40(1) and 40(3) of the IR Act, and that the:
"…term is defined for both employees who are covered by an industrial instrument, which provides for sick leave for the employee, and those who are not. For employees who are covered by an industrial instrument that provides for sick leave for the employee the effect of the definition is to refer the employee back to their industrial instrument and the meaning within the instrument of a day for sick leave purposes. For other employees, a day is the average number of hours worked by the employee over the six-week period in which the sick day was accumulated. The definition makes it clear that a “day” for the purposes of sick leave is not necessarily the same as the number of ordinary hours worked on a particular calendar day.
The effect of this definition and the new sub-section 10(5) is that an employee may take more or less than one “day’s” sick leave, as defined, for one calendar day’s absence."
(Underlining is mine)
- It is again clear from a reading of the Explanatory Notes, that s 40 of the IR Act specifically countenances a circumstance wherein more than one days sick leave entitlement can be taken in respect to one calendar day's absence. It follows that the section countenances an outcome where an entitlement to sick leave may not exist in respect to 10 calendar day absences in any one year. In producing the same or a very similar result, clause 20(e)(ii) cannot be said to be inconsistent with or less favourable than the terms of s 40 of the IR Act.
- Having concluded a view on the correct interpretation to be given to the relevant provisions of the Award and the IR Act, I propose, pursuant to s 262(4)(d) of the Act, to settle the dispute between Mr Hansen and his employer by issuing a determination to the effect that the Queensland Employment Standards are not breached by the manner in which Queensland Corrective Services is applying the sick leave provisions of the Correctional Employees Award – State 2015, and in particular the terms of clause 20(e)(ii) of the Award.
- I so order.
- Published Case Name:
Bradley Hansen v State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services)
- Shortened Case Name:
Hansen v Queensland
 QIRC 68
07 Jul 2017