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Livermore v Coles Supermarkets Pty Ltd[2019] QIRC 165

Livermore v Coles Supermarkets Pty Ltd[2019] QIRC 165

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Livermore v Coles Supermarkets Pty Ltd [2019] QIRC 165

PARTIES:

Raymond John Clinton Livermore

(Applicant)

v

Coles Supermarkets Pty Ltd

(Respondent)

CASE NO:

EC/2019/486

PROCEEDING:

Application for payment instead of taking long service leave

DELIVERED ON:

1 November 2019

CONFERENCE DATE:

16 September 2019

MEMBER:

HARTIGAN IC

HEARD AT:

Brisbane and 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 s110

Coles Supermarkets Enterprise Agreement 2017, cl9.3

APPEARANCES:

Mr R. Livermore, the Applicant.

Ms K. Turner, for Coles Supermarkets Pty Ltd.

Reasons for Decision

Introduction

  1. [1]
    Mr John Raymond Clinton Livermore is currently employed on a part-time basis by Coles Supermarkets Pty Ltd ('Coles') as a Level 1 team member.

  1. [2]
    Mr Livermore filed an application on 26 August 2019 for payment instead of taking long service leave. This application was made pursuant to sections 95(2)(a) and 110(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act').

  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 Livermore states that he commenced employment with his employer on 24 February 2010 and the date he will become entitled to long service leave is 2 March 2020. Mr Livermore applies for payment of a proportionate amount of long service leave, namely, the equivalent of 8 weeks of long service leave.

  1. [5]
    As noted above, Mr Livermore is employed as a part-time employee with Coles. On or about 20 August 2019, Mr Livermore applied for, and was subsequently granted, a period of unpaid leave from his employment between 9 September 2019 and 5 January 2020. Accordingly, Mr Livermore remains in employment with Coles, albeit, that he is presently on a leave of absence with his employer's consent.

  1. [6]
    The Respondent objected to Mr Livermore's application on the basis that Mr Livermore was not entitled to a payment for proportionate long service leave.

  1. [7]
    On the basis of the Respondent's objections, a telephone conference was scheduled, following which, directions were issued for the parties to provide written submissions with respect to Mr Livermore's entitlement to long service leave.

  1. [8]
    The question for my determination is whether Mr Livermore has an entitlement to long service leave within the meaning of s 110(1) of the IR Act.

  1. [9]
    For the reasons referred to below, I have concluded that Mr Livermore does not have such an entitlement.

The Respondent's submissions

  1. [10]
    In compliance with the directions, Coles filed submissions with respect to the objection it had to Mr Livermore's application. The basis of Coles objection can be summarised by reference to the following grounds[3]:

  1. (a)
    the Applicant does not have a long service leave entitlement (see paragraphs 8 to 11);

  1. (b)
    the Applicant is not entitled to a proportionate payment for long service leave on termination under s 95(3) of the Act because his employment is ongoing (see paragraphs 10 to 11);

  1. (c)
    the Applicant has no entitlement to long service leave and therefore has no entitlement to a payment instead of long service entitlement under s 110 of the Act (see paragraphs 8 to 13);

  1. (d)
    if the Applicant does have an entitlement to long service leave (which is denied), no applicable industrial instrument requires or provides for a payment instead of long service leave, so no payment may be lawfully made under s 110(2) of the Act (see paragraphs 12 to 16); and

  1. (e)
    the QIRC does not have the jurisdiction to order a payment instead of long service leave under ss 110(3) and 110(4) of the Act because the Applicant does not have an entitlement to long service leave, therefore no order for payment of long service leave should be made. However, if the QIRC finds the Applicant does have an entitlement, the Applicant has not demonstrated any compassionate grounds or financial hardship which is required before the QIRC can order payment of the entitlement under s 110(4) of the Act (see paragraphs 18 to 20).

  1. [11]
    Mr Livermore did not file any submissions.

Relevant legislation

  1. [12]
    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.

Note -

For provisions applicable to seasonal employees, see subdivisions 7 and 8.

  1. The employee is entitled to long service leave, on full pay, of –

  1. if the employee has completed 10 years continuous service - 8.6667 weeks; and
  2. 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. 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.
  2. However, if the employee's service is terminated before the employee has completed 10 years continuous service, the employee is entitled to a proportionate payment only if –

  1. the employee's service is terminated because of the employee's death; or
  2. the employee terminates the service because of –

  1. the employee's illness or incapacity; or
  2. a domestic or other pressing necessity; or
  1. the termination is because the employer –

  1. dismisses the employee for a reason other than the employee's conduct, capacity or performance; or
  2. unfairly dismisses the employee; or

  1. the termination is because of the passing of time and –

  1. the employee had a reasonable expectation that the employment with the employer would continue until the employee had completed at least 10 years continuous service; and
  2. the employee was prepared to continue the employment with the employer.

  1. [13]
    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. [14]
    Mr Livermore's employment is covered by the Coles Supermarket Enterprise Agreement 2017 ('the Enterprise Agreement'). Clause 9.3 of the Enterprise Agreement deals with long service leave and provides:

9.3 Long Service Leave

9.3.1Team members are entitled to long service leave in accordance with the relevant State or Territory legislation.

9.3.2A team member may request to access long service leave on the basis of double the time at half pay. Provided that the team member will not accrue any more leave than they would have had they taken long service leave on normal pay. Requests will not be unreasonably refused.

  1. [15]
    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. [16]
    No other statutory instrument relevantly applies to the Applicant's employment.

  1. [17]
    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.[4] The Applicant has completed 9 years, 6 months and 2 days of continuous service as at the date of the application filed in the Industrial Registry.

  1. [18]
    Section 95(3) 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. [19]
    Mr Livermore is not entitled to a proportionate payment for long service leave pursuant to s 95(3) of the IR Act because his employment is ongoing and the employment has not been terminated.

  1. [20]
    For these reasons, Mr Livermore 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. [21]
    I have determined that Mr Livermore does not have an entitlement to long service leave within the meaning of s 110(1) of the IR Act.

  1. [22]
    Mr Livermore'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] Respondent's submissions filed 23 September 2019, at [2].

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

Close

Editorial Notes

  • Published Case Name:

    Livermore v Coles Supermarkets Pty Ltd

  • Shortened Case Name:

    Livermore v Coles Supermarkets Pty Ltd

  • MNC:

    [2019] QIRC 165

  • Court:

    QIRC

  • Judge(s):

    Member HARTIGAN IC

  • Date:

    01 Nov 2019

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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