Nairn v State of Queensland (Queensland Police Service)
[2021] QIRC 181
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- Unreported Judgment
- Nairn v State of Queensland (Queensland Police Service)[2021] QIRC 181
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Nairn v State of Queensland (Queensland Police Service)[2021] QIRC 181
Nairn v State of Queensland (Queensland Police Service)[2021] QIRC 181
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Nairn v State of Queensland (Queensland Police Service) [2021] QIRC 181 |
PARTIES: | Nairn, Graham Eric Fraser (Applicant) v State of Queensland (Queensland Police Service) (Respondent) |
CASE NO: | EC/2021/265 |
PROCEEDING: | Application for payment instead of taking long service leave |
DELIVERED ON: | 28 May 2021 |
MEMBER: | Hartigan IC |
HEARD AT: | On the papers |
ORDER: |
|
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: | Directive 11/18 Long Service Leave, cl 23, cl 58 Industrial Relations Act 2016 (Qld), s 95, s 110 Police Service Administration Act 1990 (Qld) Queensland Police Service Employees Award – State 2016 |
CASES: | Perrett v State of Queensland (Queensland Police Service) [2019] QIRC 154 |
Reasons for Decision
Introduction
- [1]Mr Graham Nairn is a sworn police officer employed under the Police Service Administration Act 1990 (Qld). On 5 May 2021 he applied to the Queensland Industrial Relations Commission seeking orders for a proportionate payment of his long service leave entitlement for compassionate and financial hardship reasons.
- [2]Mr Nairn commenced employment with Queensland Police Service ("QPS") on 29 October 2012.
- [3]On 5 May 2012, the Industrial Registry received email correspondence from the QPS objecting to Mr Nairn's application on the basis that Mr Nairn does not have the necessary 10 years of continuous service to seek payment in lieu of taking long service leave.
- [4]I listed the matter for mention on 11 May 2021 to hear from the parties with respect to the QPS's objection. During the course of the mention, Mr Nairn indicated that he wished to continue with his application. Consequently, I issued directions with respect to the filing of submissions.
- [5]Both Mr Nairn and the QPS provided written submissions.
- [6]The question for my determination is whether Mr Nairn has an entitlement to long service leave within the meaning of s 95 of the Industrial Relations Act 2016 (Qld) ("IR Act").
The IR Act
- [7]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.
- (2)The employee is entitled to long service leave, on full pay, of –
- (a)if the employee has completed 10 years continuous service–8.6667 weeks; and
- (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.
…
- [8]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)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).
- (2)The payment may be made if –
- (a)a relevant industrial instrument or federal industrial instrument provides for the employee to be paid for all or part of the entitlement; and
- (b)the employee and employer agree by a signed agreement the payment may be made; and
- (c)the payment is made in accordance with the industrial instrument.
- (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.
- (4)The commission may order the payment only if satisfied the payment should be made –
- (a)on compassionate grounds; or
- (b)on the ground of financial hardship.
- [9]Pursuant to s 110(2)(a) consideration must also be had as to whether a relevant industrial instrument provides for the employee to be paid for all or part of the entitlement.
- [10]Mr Nairn's employment with the QPS is covered by the Queensland Police Service Employees Award – State 2016 ("the Award") which provides for long service leave for employees who complete 10 years continuous service at a rate of 1.3 weeks for each year of continuous service and a proportionate amount for an incomplete year.
- [11]Further, the Queensland Police Service Certified Agreement 2019 ("the Agreement") covers Mr Nairn’s employment. Clause 59 the Agreement applies the Ministerial Directive 11/18 Long Service Leave ("the Directive") and its provisions to police officers.
- [12]Clause 24 of the Directive relevantly states "subject to clause 9.1, employees are entitled to take pro rata long service leave after 7 years continuous service. See clause 21 for payment on termination after 7 years continuous service."
- [13]Clause 25 of the Directive reflects the relevant provisions of the IR Act, specifically in regards to making payment of all or part of an entitlement to long service leave.
- [14]There is no provision under the Award or Agreement or any signed agreement with the employer applicable to Mr Nairn which would permit payment to Mr Nairn after 7 years continuous service but before the completion of 10 years continuous service.
Consideration
- [15]Mr Nairn does not make submissions that he has accrued an entitlement to long service leave.
- [16]Rather, he submits that, for compassionate reasons, an exemption of 17 months be granted in order for the Commission to make the orders sought.
- [17]The IR Act does not empower the Commission to waive or amend the length of continuous service required by the IR Act to accrue an entitlement to long service leave.
- [18]Deputy President Merrell in Perrett relevantly summarised the position with respect to the entitlement to long service leave for police officers as follows:[1]
- a police officer, to whom the Award applies, is entitled to take long service leave on full pay as provided for by s 95 of the Act as supplemented by cl 23(b) of the Award;
- a police officer who has completed at least 7 years continuous service is entitled to a proportionate payment for long service leave on the termination of the police officer's service; however, if the police officer's service is terminated before the police officer has completed 10 years continuous service, the police officer is entitled proportionate payment of long service leave only in the circumstances described in s 95(4) of the Act; and
- there is no other legislative or industrial instrument that confers an entitlement on a police officer to take pro-rata long service leave after completing at least 7 but less than 10 years' continuous service, in circumstances where the police officer's service is continuing.
- [19]Accordingly, Mr Nairn does not have an entitlement to long service leave within the meaning of s 110(1) of the IR Act because Mr Nairn does not have 10 years of continuous service.
- [20]For the forgoing reasons, I make the following order:
- The application for payment instead of taking long service leave is dismissed.
Footnotes
[1] Perrett v State of Queensland (Queensland Police Service) [2019] QIRC 154, [24].