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Bell v State of Queensland (Queensland Police Service) QIRC 177
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Bell v State of Queensland (Queensland Police Service)  QIRC 177
State of Queensland (Queensland Police Service)
Application for payment instead of taking long service leave
20 November 2019
On the papers
INDUSTRIAL LAW – payment for long service leave instead of taking long service leave – s 110 of the Industrial Relations Act 2016 (Qld) – whether applicant has an entitlement to long service leave – long service entitlement of police officer – variation of employment contract not established
Directive 11/18 Minister for Industrial Relations Directive: Long Service Leave
Industrial Relations Act 2016 (Qld) s 95, 110
Police Service Administration Act 1990 (Qld) s 2.5A
Queensland Police Service Certified Agreement 2016
Queensland Police Service Employee Award – State 2016
Statutory Instruments Act 1992 (Qld) s 17
Cohen v iSoft Group Pty Ltd (2013) 298 ALR 516
Concut Pty Ltd v Worrell  HCA 64
Martech International Pty Ltd v Energy World Corporation Limited  FCA 1004
Perrett v State of Queensland (Queensland Police Service)  QIRC 154
Reasons for Decision
- Mr Joshua Bell is currently a Senior Constable ('SC') of police with the Queensland Police Service ('QPS') and is stationed on the Gold Coast.
- SC Bell's employment is pursuant to s 2.5A the Police Service Administration Act 1990 ('PSAA'). His conditions of employment are set out and regulated by the Industrial Relations Act 2016 ('the IR Act'), the Queensland Police Service Employee Award – State 2016 ('the Award') and the Queensland Police Service Certified Agreement 2016 ('the CA').
- On 26 September 2019 SC Bell filed an application pursuant to s 110 of the IR Act seeking payment instead of taking long service leave.
- His application indicates that he commenced employment with the QPS on 5 September 2011. Accordingly, SC Bell has approximately 8 years continuous service with the QPS.
- Section 110 of the IR Act allows the commission, in its discretion, to allow for payment of the cash equivalent value of long service leave to which an employee has an 'entitlement'. The discretion can only be exercised in circumstances of demonstrated financial hardship or on compassionate grounds.
- SC Bell alleges he is presently entitled to long service leave and relies on the ground of financial hardship in making his application. The particulars of the hardship are set out in his application however, for the purposes of this decision, it is not necessary to reproduce them here.
- SC Bell seeks payment of an amount equivalent to 556. 59 hours of long service leave.
- Upon receipt of SC Bell's application a directions order was issued on 27 September 2019. The directions required the QPS to inter alia confirm the details of SC Bell's entitlement to long service leave by 12 noon on 2 October 2019.
- On 30 September 2019 an email was received from the Public Safety Business Agency ('PSBA') the entity responsible for managing the human resources function of the QPS. The PSBA opposed the application by SC Bell. The basis of the opposition to the application was that SC Bell did not have the 10 years of continuous service. On their submission, SC Bell did not have an 'entitlement' within the meaning of s 110 of the IR Act.
- The PSBA did not challenge the circumstances of hardship alleged by SC Bell.
- As a consequence of the opposition to the application the matter was listed for mention on 3 October 2019. On this occasion, SC Bell was given an opportunity to consider his position in respect of the PSBA's opposition to his application. SC Bell was invited to provide written submissions in support of his application and he ultimately did so on 25 October 2019.
- In order for SC Bell to have standing to make the application pursuant to s 110, he must have an entitlement to long service leave.
- The singular question for my determination in this matter is whether SC Bell has the requisite 'entitlement' to allow him to make application for payment of long service leave pursuant to section 110 of the IR Act.
Submissions of the PSBA
- The submissions of the PSBA contained in their email of 30 September 2019 are straight forward. The PSBA points to SC Bell's length of service as the disqualifying feature with respect to the 'entitlement' necessary to allow an application under s 110.
- The PSBA's argument relies exclusively on the submission that SC Bell's entitlement to long service leave is determined in accordance with the terms of the IR Act.
- The submissions of the PSBA make no submission about the provisions of any other relevant instrument with respect to the source of any entitlement to long service leave. Understandably, this is presumably because they do not consider that other instruments have any influence on SC Bell's entitlement.
- There is no reference to the Award or the CA. In particular, there is no reference to Directive 11/18 Minister for Industrial Relations Directive: Long Service Leave ('the directive') which contains provisions applicable to public servants that vary the long service leave entitlements arising under the IR Act.
- I make no criticism of the absence of references to these instruments in their submissions. The basis for SC Bell’s assertion of entitlement was unknown to them at the time of drafting their email of 30 September 2019. Nevertheless, by clear inference, their submission is that SC Bell's entitlement for the purposes of s 110 exclusively arises in accordance with the terms of s 95(2) of the IR Act.
- I will briefly address the question of application of the Award, the CA in my consideration below.
Submissions of SC Bell
- SC Bell provided written submissions on 25 October 2019.
- Relevantly, SC Bell makes the following concessions from the outset:
- that he has not been employed by the QPS for a period of 10 years and therefore any 'entitlement' to long service leave that he presently has does not arise under section 95(2) of the IR Act;
- that the Award does not contain an entitlement to access long service leave prior to the completion of 10 years continuous service; and
- that the directive does not apply to police officers.
- Notwithstanding his concession that the directive does not apply to police officers, SC Bell submits that he still has an 'entitlement' that is sourced in the directive. The basis for this submission is that information and materials accessible on the PSBA intranet have the effect of negating the conceded statutory barriers.
- Attached to SC Bell's submissions are two documents:
- 'Leave (police officers): reference table' ('Annexure A'); and
- a document that purports to be a screenshot from the 'human resources page' of the PSBA intranet('Annexure B').
- Subsequent to filing his submissions, SC Bell and the PSBA were asked via email on 13 November 2019 to identify the source of Annexure A. SC Bell responded via email the same day and advised Annexure A is found via a link on the PSBA intranet site for QPS. PSBA, who were included in the response email from SC Bell did not seek to contradict this.
- SC Bell's submissions refer to the content found on page 5 of Annexure A. SC Bell refers to the third row of the first column which provides:
Long Service Leave (Entitlements)
Queensland Police Service Employees Award – State 2016 (clause 23)
Long Service Leave Directive
- SC Bell makes the point that there is a direct reference to the directive.
- The submission of SC Bell appears to be that the 'direct' reference to the directive in Annexure A has the effect of overcoming the (conceded) technical barriers and introducing it as a term of his employment.
- In relation to Annexure B, which is also described as originating from the PSBA intranet, the relevant content relied upon by SC Bell appears to be:
Long Service Leave
All portfolio employees who complete 10 years continuous service are entitled to 6.5 working days for each continuous year of service.
Pro-rata leave may be accessed once 7 years continuous service has been completed...
- Similarly, it seems that the submission in relation to Annexure B is that a reference (in the abstract) to an entitlement of 'all portfolio employees' on the intranet, has the effect of varying the entitlement otherwise plainly established under the Award and the IR Act.
- There is no submission as to how the presence of these documents operate to bring SC Bell within coverage of the directive or how they, in some other way, alter his rights under the IR Act. He simply asserts that the presence of this information on the PSBA/QPS intranet gives rise to an entitlement after 7 years continuous service.
- It must be appreciated that SC Bell is self-represented and not legally qualified. Noting that, his submission is that the information found at Annexure A & B essentially informs him that he has an entitlement to pro rata long service leave after 7 years continuous service.
- While not expressed as such, the unavoidable implication of SC Bell's submission thereafter appears to be that: because this 'entitlement' is proclaimed on the intranet administered by his employer, it has the effect of varying the conditions of his employment, either to incorporate the terms of the directive (Annexure A) or to grant pro rata access to long service entitlements at 7 years (Annexure B).
Long service leave entitlements – generally
- Section 95 of the IR Act broadly establishes entitlements to long service leave for employees in Queensland. Section 95(2) provides for an entitlement of 8.6667 weeks of leave for an employee after 10 years of continuous service.
- Section 95(6) contemplates circumstances where an employee will have an entitlement to long service leave 'other than under this Act'. This will typically be where an industrial instrument (e.g. an award, certified agreement, or a directive) provides for an entitlement that is greater than that provided for in the IR Act, or arises after a lesser period of continuous service, or both. Further, a contractual term may also operate to vary the entitlement arising under the IR Act.
- The only limitation on variations to the entitlement is that the varied entitlements are not less favourable than those arising under the IR Act. It would therefore, for example, be legitimate for an employer and employee to contractually agree to allow the employee to have access to long service leave on a pro rata basis at seven years.
- In circumstances where s 95(6) plainly contemplates long service leave entitlements arising 'other than under this Act', it follows that the reference to 'entitlement' found at s 110(1) of the IR Act is not limited to the entitlement arising under s 95. The term entitlement in the context of s 110 should be read widely.
Long service leave entitlements – QPS
- Having regard to the instruments applicable to police officers, it is noted that the CA is silent on the issue of long service leave and the Award defers to the IR Act. Further, it is conceded by SC Bell that the directive does not apply, at least in the conventional way.
- Even if SC Bell had not conceded that the directive did not apply to police officers, I would have concluded that it did not.
- Save for consideration of the arguments advanced by SC Bell, it is clear that the entitlements to long service leave for police officers are determined in accordance with s 95 of the IR Act i.e. 10 continuous years of service. Without such entitlement being established, he could have no access to payment pursuant to s 110.
- The success of SC Bell's application relies entirely on the acceptance of his submission that the documents found at Annexure A and B to his written submissions have the effect of varying the otherwise clear provisions contained in the Award and the IR Act.
- With respect to Annexure A, the submissions of SC Bell do not extend to explaining what construction of the document has the effect of varying his entitlement to long service leave in the manner that he contends.
- Despite attempts to establish the precise provenance of Annexure A, it would seem that it is best described as a document found on the PSBA/QPS intranet. It is not apparent that it is part of any applicable directive, or an extract from an applicable award or agreement. It is further not apparent whether it is current, or who maintains it.
- Given the limited description of its origin, it is unlikely that Annexure A is, or is part of, a statutory or industrial instrument. However, in the absence of clear evidence as to such matters as e.g. its origin, who maintains it, whether it is up to date etc, its status remains uncertain. Ultimately though, having regard to the content, its status becomes a secondary consideration.
- Nothing about the content of Annexure A supports the construction posited by SC Bell. The content he relies on in the third row of page 5 of Annexure A as set out in the table above is, at best, a disjointed collection of concepts and references to external sources. It fails to draw connections between the content.
- Arguably, the content deals only with long service leave entitlements in the context of questions about:
- leave being taken at half pay;
- the timing as to when leave might be taken; or
- the minimum leave that might be taken.
- The content of the first column says nothing about what the entitlement is or what qualifying conditions are placed on that entitlement.
- The content of row 3, column 2 on page 5 of Annexure A simply makes reference to the Award and the directive.
- The Award plainly defers to the IR Act.
- The reference to the directive is unusual and unexplained. However, the lack of explanation does not, even at the greatest stretch, give rise to a conclusion that the reference to the directive directly or impliedly incorporates the directive into the terms of a police officer's employment. Even if it could, it arguably only applies to the limited matters found at column 1.
- The variation of terms of an employment contract must be a product of mutual intent, determined objectively. There is nothing about the content of Annexure A or its presence on the PSBA/QPS intranet that would lead me to conclude that it was, objectively, an expression of an intention to be bound by terms other than those found in the IR Act. Indeed, the opening words of Annexure A include inter alia, a referral to the IR Act, the CA and the Award.
- Further, variation must be supported by consideration.
- Even if Annexure A could produce a variation to the terms of SC Bell's employment, it is then a question of what the terms of the variation are. This requires an examination of Annexure A as a whole. SC Bell entirely omitted in his submissions to make any reference to the content of row 4 on page 5 of Annexure A. Row 4 on page 5 deals with applying for payment instead of taking long service leave, which is precisely the nature of SC Bell's application.
- If Annexure A has any influence in actually determining the entitlements of SC Bell (which is unlikely), Row 4 on page 5 is the appropriate content to consider in the context of this application.
- Row 4 at page 5 of Annexure A provides:
Long Service Leave (payment instead of LSL – application on compassionate grounds or grounds of financial hardship)
Industrial Relations Act 2016 (s 110)
See the Queensland Industrial Relations Commission (www.qirc.qld.gov.au) for further details on the application process…
Employees must have 10 years' continuous service to apply for payment under s 53(3) of the IR Act (see s 43 of the IR Act).
- By way of observation: Firstly, the emphasis on 'must have 10 years' continuous service' in the table above is as the text appears in the document i.e. emphasis has not been added here. Secondly, the reference to s 53(3) and s 43 of the IR Act are clearly references to the repealed Act but contain similar provisions to s 95 and s 110.
- As a further observation, the reference to the repealed Act adds further to doubts about the currency of the information contained in the document, and its reliability generally.
- Leaving aside these observations, in so far as row 4 purports to establish pre-conditions to apply for payment instead of taking long service leave, there is a clear reference to a qualifying period of continuous employment of ten years.
- I am unable to be satisfied that the document described as Annexure A has any effect to vary the entitlement to long service leave for a police officers that is otherwise established by s 95 of the IR Act.
- Further, even in the unlikely event that it could have that effect, row four deals specifically with the process of applying for payment instead of taking leave and plainly imposes a qualifying period of 10 years continuous service.
- Annexure B is of similarly doubtful influence. A review of the document appears to confirm its origin is the PSBA intranet. It is undated and appears to be in the nature of a generic information sheet. This is hardly consistent with objective evidence of an intent to be bound by varied terms of employment.
- The submission of SC Bell appears to be that the mere appearance of a reference to a pro-rata entitlement at 7 years operates to vary his otherwise clearly enunciated entitlement to long service leave in the IR Act. I reject this submission. A variation requires evidence of mutual intent. A variation requires consideration.
- In the absence of clear evidence as to its origins, from whomever is responsible for its presence on the intranet, I regard Annexure B with great caution.
- Annexure B is essentially an extract. I am not privy to the full context of Annexure B. The broader context may well add clarity, or it may show the content of Annexure B to be an anomaly or mistake.
- For these reasons I conclude that Annexure B is of unknown and therefore unreliable provenance. It therefore cannot be capable of altering the otherwise clearly identifiable conditions of SC Bell's employment as found in inter alia the IR Act.
- It should be noted that, but for his lack of the requisite continuous service, I would otherwise have been satisfied as to the circumstances of hardship pleaded by SC Bell.
- Further, by relying on Annexures A & B, SC Bell has helpfully highlighted two sources of information accessible by members of the QPS that are quite obviously in need of clarification and updating. I would expect that PSBA will give immediate attention to this task to avoid other QPS members falling into the same error.
- Regrettably my discretion under s 110 cannot be exercised to assist SC Bell in these circumstances where he does not, at this time, have the requisite entitlement to access his long service leave.
- The application is dismissed.
 Clause 24 of the directive provides an entitlement for employees under the Public Service Act 2008 to pro rata long service leave after 7 years.
 Paragraph 14 of SC Bell's submissions dated 25 October 2019.
 Paragraph 15 of SC Bell's submissions dated 25 October 2019.
 Paragraphs 17 & 18 of SC Bell's submissions dated 25 October 2019.
 Paragraphs 19-22 of SC Bell's submissions dated 25 October 2019.
 Paragraph 22 of SC Bell's submissions dated 25 October 2019.
 See Perrett v State of Queensland (Queensland Police Service)  QIRC 154.
 See Section 7 of the Statutory Instruments Act 1992 (Qld) and Schedule 5 of the IR Act.
 Concut Pty Ltd v Worrell  HCA 64; 75 ALJR 312 per Kirby, J at ; see also Cohen v iSoft Group Pty Ltd (2013) 298 ALR 516 at -.
 See for example Martech International Pty Ltd v Energy World Corporation Limited  FCA 1004 at .
- Published Case Name:
Joshua Bell v State of Queensland (Queensland Police Service)
- Shortened Case Name:
Bell v State of Queensland (Queensland Police Service)
 QIRC 177
20 Nov 2019