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  4. Rankin v State of Queensland (Queensland Health) - [2021] QIRC 48

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Rankin v State of Queensland (Queensland Health)[2021] QIRC 48

Rankin v State of Queensland (Queensland Health)[2021] QIRC 48

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Rankin v State of Queensland (Queensland Health) [2021] QIRC 048

PARTIES:

(Applicant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

B/2019/66

PROCEEDING:

Application for payment of unpaid wages

DELIVERED ON:

10 February 2021

HEARING

18 May 2020

MEMBER:

Power IC

HEARD AT:

Brisbane

ORDER:

That the Applicant be paid the annual leave, annual leave loading and sick leave which would have accrued for the period 19 March 2019 to 13 September 2019.

CATCHWORDS:

INDUSTRIAL LAW – application for payment of unpaid wages – leave entitlements – whether the applicant accrued sick leave whilst receiving workers compensation payments

LEGISLATION:

Industrial Relations Act 2016 s 31, s 32, s 37, s 40, s 475

Public Service Act 2008 s 51, s 52

Workers' Compensation and Rehabilitation Act 2003 s 110(5), s 119A

CASES:

Hall v Medical Imaging Queensland Pty Ltd [2015] FCCA 326

Leonard v State of Queensland (Queensland Health) & Anor [2020] QIRC 207

Workpac Pty Ltd v M Bambach [2012] FWAFB 3206

APPEARANCES:

Mr M Heffernan for the Applicant

Mr M Uzelin for the Respondent

Decision

  1. [1]
    Ms Rankin (the Applicant) is employed by the State of Queensland (Queensland Health) as a clinical nurse in outpatient oncology. On 18 November 2019, the Applicant filed an application to recover unpaid wages.
  1. [2]
    The specific amounts the Applicant seeks are sick leave, annual leave and annual leave loading she says should have accrued during a period of time when she was receiving workers' compensation benefits.
  1. [3]
    The Applicant seeks orders for payment under s 475 of the Industrial Relations Act 2016 (IR Act) and says that following underpayment she is entitled to a total sum of $3,876.24 being:
  1. Annual leave under ss 31 and 37 of the IR Act in the amount of $2,794.55.
  1. Annual Leave Loading under s 36 of the IR Act in the amount of $489.05.
  1. Sick Leave under s 40 in the amount of $593.24.

Relevant history and background of claim

  1. [4]
    The Applicant says that on 6 October 2018, she submitted a WorkCover claim arising from a diagnosis of bilateral carpal tunnel syndrome. 
  1. [5]
    There were conflicting accounts provided by the Applicant and the Respondent regarding dates the Applicant took sick leave and commenced receiving workers' compensation payments.  The Respondent provided a 'leave takings' report to support its submissions.  At the hearing of this matter, I asked the Applicant's representative if that 'leave takings' report was accepted by the Applicant.
  1. [6]
    The Applicant's representative stated that the specific dates that the Applicant commenced receiving workers' compensation payments were not of concern, as if the Applicant prevailed in this matter, leave would have continued to accrue.
  1. [7]
    The amounts sought by the Applicant relate to a specific time period when she ceased accruing annual leave and sick leave while claiming workers' compensation payments.
  1. [8]
    The Applicant believes that since commencing WorkCover leave, she has noticed variations/discrepancies in the amount of leave entitlements being recorded on her employment timesheets.  She outlines the particulars of the underpayment amounts listed above at [3] in schedule 1 of her application.
  1. [9]
    On the issue of accrued annual leave, the Applicant claims:
  • From the period 18 June 2018 to 11 August 2019, her accrued annual leave entitlement was supposed to be 118.92 hours;
  • the leave actually granted to her was 61.45 hours, a difference of 57.47 hours;
  • the difference when multiplied by her annual rate is $2794.55; and
  • with annual leave loading of 17.5% applied, this amount should be $3283.60.
  1. [10]
    On the issue of her sick leave entitlements, the Applicant says:
  • From the period 18 June 2018 to 11 August 2019 her accrued sick leave entitlement was supposed to be 61.04 hours;
  • the sick leave actually granted to her was 48.4 hours.  This is a difference of 12.20 hours; and
  • When multiplied by her annual rate, the difference is $593.24.

Applicant submissions

  1. [11]
    The Applicant says that relevantly, s 119A of the Workers' Compensation and Rehabilitation Act 2003 (WCRA) reads as follows:

119A Compensation entitlement does not restrict taking or accrual of leave

  1. (1)
    This section applies to a worker who is entitled to compensation, including compensation payable as weekly payments.
  1. (2)
    The worker is entitled to take or accrue annual leave, sick leave and long service leave under an Industrial Act or industrial instrument during the period to which the compensation applies.

Note – In relation to entitlements under the Fair Work Act 2009 (Cwlth), this section removes the restriction under section 130(1) of that Act.

  1. [12]
    The Applicant submits that there is no dispute that for the purposes of the relevant period of employment, that she was a public service employee and the parties agree that the Award applies although there is disagreement as to which of the following Directives from the Minister for Industrial Relations applies:
  • Directive 15/18 – Leave without Salary Credited as Service (Directive 15/18) which the Respondent says applies; and
  • Directive 01/19 – Leave without Salary Credited as Service (Directive 01/19) which superseded Directive 15/18 on 13 September 2019 and the Applicant says applies.
  1. [13]
    Further, the Applicant says that even if neither of the Directives apply, then based purely on the applicable legislation, the Applicant is entitled to the relief claimed, pursuant to the relevant legislation.
  1. [14]
    The Applicant's submissions traverse a range of matters related to her employment, however as it has become clear that the matter to be determined is whether the Applicant should have continued to accrue annual leave and sick leave during the period of time she was receiving workers' compensation payments, I have confined my consideration to those parts of the application, the written and oral submissions.
  1. [15]
    The case the Applicant can be summarised as follows:
  • Directive 15/18 is in conflict with the WCRA and the IR Act.
  • Directive 01/19 is not in conflict with the WCRA and the IR Act.
  • If none of the Directives apply, based purely on the applicable legislation, the Applicant is clearly entitled to the relief claimed.
  • Sections 51 and 52 of the Public Service Act 2008 (PS Act) and s 941 of the IR Act apply if there is a conflict with an act, regulation or industrial instrument.
  • Entitlement to annual leave is pursuant to s 31 of the IR Act.
  • Entitlement to sick leave is pursuant to s 40 of the IR Act.
  • The Applicant is employed under the Nurses and Midwives (Queensland Health) Award – State 2015. Clause 19 provides for annual leave and cl 20 provides for personal leave.
  • In the ordinary course, sub-s 130(1) of the Fair Work Act 2009 (Cth) (FW Act) restricts the taking or accruing of leave when receiving workers' compensation however, allows for the lifting of that restriction in the circumstance that taking or accruing such leave is permitted by a compensation law. An applicable 'compensation law' includes the WCRA which relevantly provides at s 119A that compensation entitlement does not restrict taking or accrual of leave.
  • It follows that s 130(1) of the FW Act does not apply to the Applicant and should not be considered in these proceedings and the Applicant is entitled to take or accrue annual leave and sick leave during a period for which compensation relates.
  • The Applicant is being paid by the Department of Health under s 110(5) WCRA.
  • Section 32 of the IR Act hasn't been triggered because the worker has been paid the whole time.[1]
  • Through workers' compensation, the employer chose to pay the worker and be reimbursed from WorkCover.
  • There is no place for an employer to grant special leave for workers' compensation. When an employee's claim is approved, they commence receiving compensation.[2]

The case for the Respondent

  1. [16]
    The submissions of the Respondent include responses to some of the material I referred to at [15].  I have focused my attention on the submissions relevant to the matter at issue.
  1. [17]
    The Respondent relies principally on the IR Act; Directive 15/18, the WCRA, the PS Act and the Acts Interpretation Act 1954.
  1. [18]
    The Respondent submits that s 32 of the IR Act means that annual leave and sick leave cease accruing after a period of three months without pay. The Respondent submits that the meaning of pay in the context of s 32 of the IR Act must be the ordinary and customary meaning of pay in an industrial context, that is, payment by the employer of wages prescribed in schedule 5 of the IR Act, including leave.

wages means –

  1. (a)
    an amount payable to an employee for –
  1. (i)
    work performed, or to be performed, by the employee; or
  1. (ii)
    a public holiday; or
  1. (ii)
    leave the employee is entitled to; or
  1. (iii)
    termination of employment; or
  1. (b)
    a salary; or
  1. (c)
    an amount payable from wages for the employee, with the employee's written consent.
  1. [19]
    Directive 15/18 was applicable at the time in question and had been extended to health service employees via the Public Service Regulation 2008.  The Directive and the IR Act are consistent in providing for accruals up to the first 3 months only for periods of leave without pay.
  1. [20]
    Section 32 of the IR Act limits s 31 in that s 31(1) applies for the working out of an 'as completed' year of employment. A completed year of employment can only mean a completed year of employment with the employer. The calculation of that completed year of employment is further defined by the provisions of s 32.
  1. [21]
    The Respondent says that the Applicant accrued entitlements as prescribed in Directive 15/18, from 19 December 2018 to 19 March 2019.
  1. [22]
    The Respondent submits that there was no payment made by the employer to the Applicant for any leave prescribed by the IR Act or the relevant industrial instrument from 19 March 2019 to 13 September 2019, when Directive 01/19 came into effect, with the exception of periods when the Applicant attended for work as part of a suitable duties plan.
  1. [23]
    For the claim by the Applicant for sick leave, the Respondent relies on the application of s 40 of the IR Act and Directive 15/18.
  1. [24]
    Section 40(1) of the IR Act provides that an employee is entitled to at least 10 days of sick leave on full pay for each completed year of employment with an employer.  The completed year of employment would be precisely the same as a completed year of employment for annual leave and excludes a period of absence without pay for a period greater than three months.[3]
  1. [25]
    The Respondent says that the applicable industrial instrument is the IR Act. The matters in dispute are prescribed in legislation that applies in the Queensland jurisdiction. The Applicant is not a national system employee and accordingly the FW Act does not apply to her employment; the IR Act applies.
  1. [26]
    The FW Act contains no legislative provision either identical or similar to, section 32 of the IR Act.  Therefore all judgments in the Commonwealth jurisdiction do not take into account similar or identical provisions contained in the IR Act at s 31 and 32, and so should be disregarded and are irrelevant to this matter.
  1. [27]
    The Respondent submits that on 13 September 2019, the Applicant commenced the accrual of annual leave and sick leave in accordance with Directive 01/19, which came into effect on 13 September 2019.
  1. [28]
    The Respondent submits that the Applicant has accrued annual leave and sick leave entitlement correctly, and that the Applicant does not have a valid claim for unpaid wages on the Respondent.

Relevant statutory provisions

  1. [29]
    The "annual leave" provisions of the IR Act are contained in Part 2 of Chapter 2.  Sick leave provisions are found at s 40. They relevantly provide as follows:

31 Entitlement

  1. (1)
    For each completed year of employment with an employer, an employee is entitled to—
  1. (a)
    if the employee is not a shift worker—at least 4 weeks annual leave; or
  1. (b)
    if the employee is a shift worker—at least 5 weeks annual leave.
  1. (2)
    Annual leave is exclusive of a public holiday that falls during the leave.
  1. (3)
    However, if an employee is entitled to additional annual leave as compensation for working on a particular public holiday, annual leave is inclusive of the particular public holiday.
  1. (4)
    Annual leave accumulates.
  1. (5)
    This section does not confer an entitlement or an additional entitlement in relation to employment before 4 June 1999.
  1. (6)
    In this section—

shift worker means an employee who—

  1. (a)
    is employed in a calling in which shifts are worked 24 hours a day, 7 days a week; and 40 Entitlement to sick leave
  1. (1)
    An employee is entitled to at least 10 days sick leave on full pay for each completed year of employment with an
  1. (2)
    An employee’s entitlement to paid sick leave accumulates—
  1. (a)
    progressively during a year of employment according to the employee’s ordinary hours of work; and
  1. (b)
    from year to year.
  1. (3)
    Sick leave may be taken for part of a day.

Notes—

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 11/4 days sick leave.

  1. (4)
    This section does not confer an entitlement or an additional entitlement in relation to employment before the commencement of this section.
  1. (5)
    In this section—

day, for an employee who is paid on the basis of the number

of hours worked, means—

  1. (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 meaning of the instrument to the extent it relates to sick leave; or
  1. (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.
  1. [30]
    Directive 15/18 provides:

DIRECTIVE

SCHEDULE – LEAVE CREDITED AS SERVICE

GENERAL CONDITIONS

7.  Entitlement

7.1   Public service officers employed under section 8 of the Public Service Act 2008 and employees engaged under sections 147(2)(a) and 148(2)(a) of the Act are to have leave without salary credited as service for leave and salary purposes as provided in this schedule.

LEAVE CREDITED AS SERVICE

Type of leave without salary

Period of leave without salary recognised for:

 

Recreation leave

Sick leave

Long service leave

Salary increments

Sick leave (1)

The first 3 months of any continuous period.

The first 3 months of any continuous period.

The first 3 months of any continuous period.

The first 3 months of any continuous period.

Parental leave (2)

The first 3 months of any continuous period.

The first 3 months of any continuous period.

The first 3 months of any continuous period.

The first 3 months of any continuous period.

Special leave

The first 3 months of any continuous

period.

Any continuous period not exceeding 9 working days (3).

Any continuous period not exceeding 9 working days (3).

Any continuous period not exceeding 1 month (3).

Purchased leave (5)

The first 3 months of any continuous

period.

Any continuous period not exceeding 9 working days (3).

Any continuous period not exceeding 9 working days (3).

Any continuous period not exceeding 1 month (3).

Study leave;

residential school;

attendance leave;

and SARAS leave.

The first 3 months of any continuous period.

Any continuous period not exceeding 9 working days (3).

Any period provided that the course of study is successfully completed.

For cash equivalent purposes successful periods of study shall only be recognised in the case of retirement

under sections 136 and 178 of the Public Service Act 2008, retrenchment under section 138 of the Public Service Act 2008 or in the case of death.

Any continuous period not exceeding 1 month. (3)

OR

Any period where a Staff Scholarship, equal to part or full salary is granted.

Special leave to undertake service overseas with the Australian Volunteers International

The first 3 months of any continuous period.

Any period

Any period

Any continuous period not exceeding 1 month (3).

Special leave to claim Workers’ Compensation (4)

The first 3 months of any continuous period.

The first 3 months of any continuous period.

Any period.

The first 3 months of any continuous period.

Defence Reserve Forces leave

The first 3 months of any continuous period.

The first 3 months of any continuous period.

Any period.

The first 3 months of any continuous period.

  1. [31]
    The now superseded Directive 15/18 and the new Directive 01/19 both contain the following with regard to suitable duties:
  1. (4)
    Where an employee returns to work on a graduated "suitable duties program" and is paid by the employer (i.e. is not receiving workers' compensation benefits paid by the insurer under the Workers' Compensation and Rehabilitation Act 2003) the employer is to credit attendance at work for leave purposes in accordance with the relevant directive.
  1. [32]
    The questions I find are relevant to determining this application are as follows:
  • Did Directive 15/18 apply to the Applicant for the period of time the dispute relates to?
  • The parties both refer to the Applicant being on 'Workcover leave' for the purposes of the Directive. What is 'Workcover leave'?
  • Under the relevant industrial instruments was the Applicant able to
  • accrue annual leave during the relevant period?
  • accrue sick leave during the relevant period?
  • Was Directive 15/18 reflective of or in conflict with the relevant legislation (IR Act and WCRA) at the time it applied to the Applicant?

Did Directive 15/18 apply to the Applicant during the period in question

  1. [33]
    It is not in dispute that Applicant is a person to whom the Directive/s apply.
  1. [34]
    The period of time the Applicant was not accruing annual leave or sick leave was between 19 March 2019 and 13 September 2019.
  1. [35]
    Directive 01/19 came into effect on 13 September 2019.  From this point, Directive 15/18 did not apply.
  1. [36]
    Interestingly, Directive 01/19 is identical to Directive 15/18 except in its treatment of 'Special Leave to Claim Workers' Compensation'.
  1. [37]
    The change meant that any period of leave without salary is now recognized for purposes of accruing recreation leave, sick leave, long service leave and salary increments.
  1. [38]
    From 13 September 2019, the Applicant once again commenced accruing these entitlements.
  1. [39]
    For the period between 19 March 2019 and 13 September 2019, the relevant Directive was Directive 15/18.

What is Workcover leave?

  1. [40]
    Both Directive 15/18 and Directive 01/19 which supersedes it, deal with how leave without salary is credited as service. While a range of categories of 'leave without salary' are referred to, the seventh row of both Directives lists 'Special leave to claim Workers' Compensation'.
  1. [41]
    This appears to be a way of identifying and noting the absence of an employee from the workplace due to that employee being injured and receiving Workers' Compensation payments.
  1. [42]
    During that period of time, the employee is without 'salary', however they are receiving payments of workers' compensation.
  1. [43]
    Note 4 of both Directives describes the situation regarding leave where an employee returns to work on a graduated 'suitable duties' program and is paid by the employer.  In this situation it says 'i.e. is not receiving workers' compensation benefits paid by the insurer under the WCRA.
  1. [44]
    It is clear that special leave to claim workers' compensation applies during the time the employee is receiving 'benefits' as opposed to 'salary' and that when the employee returns to work on a 'suitable duties program' and is paid by the employer once more, the employee ceases to be on this type of leave, at least for the portion of their regular employment involved in the suitable duties program.
  1. [45]
    With regard to note 4 to the Directives and paragraph [31], the evidence indicates that the Applicant was properly accruing leave during times she was on a 'return to work' program.

Under the relevant instruments, was the Applicant entitled to accrue annual leave and sick leave during the period in question?

  1. [46]
    The WCRA at s 119A prescribes:

119A Compensation entitlement does not restrict taking or accrual of leave

  1. (1)
    This section applies to a worker who is entitled to compensation, including compensation payable as weekly payments.
  1. (2)
    The worker is entitled to take or accrue annual leave, sick leave and long service leave under an Industrial Act or industrial instrument during the period to which the compensation relates.

Note – In relation to entitlements under the Fair Work Act 2009 (Cwth), this section removes the restriction under section 130(1) of that Act.

  1. [47]
    It is agreed between the parties that the Applicant's entitlement to annual and sick leave is pursuant to ss 31 and 40 of the IR Act respectively.
  1. [48]
    To determine whether the Directive 15/18 is in conflict with the relevant industrial instruments, it is necessary to consider ss 31, 32 and 40 of the IR Act and how they applied to the Applicant while she was receiving workers' compensation benefits between date and date.

Annual Leave

  1. [49]
    Section 31(1)(a) of the IR Act provides that an employee is entitled to four weeks of annual leave for each completed year of employment with an employer.
  1. [50]
    To determine what a 'completed year of employment' entails for annual leave purposes, it is necessary to consider s 32 of the IR Act:

32 Working out a completed year of employment

  1. (1)
    This section applies for working out a completed year of employment for section 31.
  1. (2)
    The following periods when an employee is absent without pay are not to be taken into account –
  1. (a)
    a period of more than 3 months when an employer is absent with the employer's approval;
  1. (b)
    a period when an employee is absent without the employer's approval, unless the employee is absent for not more than 3 months because of illness of injury that is certified by a doctor.

Was the Applicant receiving 'pay' during the relevant period of Workers' Compensation?

  1. [51]
    The Applicant says that as she was being paid workers' compensation benefits via the Health Payroll system during the time she was away from work, she was not without pay. Her representative says that s 31 of the IR Act doesn't refer to wages, it refers to pay.
  1. [52]
    The Respondent says 'pay' means payment by the employer of wages prescribed in sch 5 of the IR Act.

wages means –

  1. (a)
    An amount payable to an employee for –
  1. (i)
    Work performed, or to be performed, by the employee; or
  2. (ii)
    A public holiday; or
  3. (iii)
    Leave the employee
  1. [53]
    However, the relevant sections of the IR Act do not refer to 'wages', they refer to 'pay'.
  1. [54]
    Schedule 5 of the IR Act does not define "pay", nor does the Acts Interpretation Act 1954 (Qld).
  1. [55]
    The Macquarie Dictionary provides the following definition of 'pay':
  1. to discharge (a debt, obligation, etc), as by giving or doing something.
  2. to give (money etc.) as in discharge of debt or obligation.
  3. to satisfy the claims of (a person, etc.) as by giving money due.
  4. to defray (cost or expense)
  5. to give compensation for.

…

  1. [56]
    This definition takes the reference to 'pay' in the relevant sections of the IR Act beyond a mere reference to wages.  In circumstances where the employee is absent due to a work-related in injury on approved workers' compensation payments being paid, as they were in the Applicant's case, by WorkCover I think it is reasonable to determine that during the time a worker is receiving workers' compensation, they continue to receive 'pay'. They are not 'without pay' during this time.
  1. [57]
    The matter of whether annual leave and sick leave entitlements continue to accrue during periods of workers' compensation leave was recently considered by Hartigan IC in the matter of Leonard v State of Queensland (Queensland Health) & Anor [2020] QIRC 207 (Leonard).
  1. [58]
    In that decision, the Commission considered decisions of the Federal Circuit Court of Australia and the Fair Work Commission dealing with matters of a similar nature to the situation in Leonard.  With regard to the decision of Workpac Pty Ltd v M Bambach [2012] FWAFB 3206 (Bambach), Hartigan IC stated:

[32]  In that matter, Mr Bambach was injured during the course of his employment, soon after his commencement with the employer. The issue was whether he was entitled to the protection of the unfair dismissal provisions of the FW Act on the basis that he had been in continual service. He had had a period away from work, during which he was in receipt of workers' compensation payments form the employer's workers' compensation insurer. The day following his return to work, his employment was terminated.  The issue was whether the period during which he was absent on leave counted as part of his service and consequently, whether he was able to access the unfair dismissal laws.

[33]  The Full Bench held that the absence was not an unpaid absence for the purpose of s 22(2)(b) of the FW Act because the employer was under an obligation pursuant to the Workers' Compensation Act 1987 (NSW) to make compensation payments to the applicant. The Full Bench relevantly stated:

[32]  The word 'unpaid' presents an insurmountable problem for the appellant in this case. The period during which Mr Bambach was absent due to his work related injury was not 'unpaid'. During the relevant period Mr Bambach received compensation payments in accordance with the provisions of the Workers' Compensation Act 1987 (NSW) (the Workers' Compensation Act). Those payments were made pursuant to a legal obligation upon Mr Bambach's employer, WorkPac. Section 9(1) of the Workers' Compensation Act provides: "A worker who has received an injury…shall receive compensation from the worker's employer in accordance with this Act" [emphasis added]

…

[37]  Contrary to the appellant's submission, the fact that WorkPac chose to insure against such liabilities, and hence the payments were actually made by WorkPac's insurer, is irrelevant. The fact that the payments were made pursuant to a legal obligation upon the employer is the critical consideration. The nature of the payment does not change because the employer has entered into an indemnity arrangement with a third party. We note that our conclusion in this regard is consistent with the decision of Commissioner Roe in Webster v Toni and Guy Port Melbourne Pty Ltd. In that case the Commissioner concluded that an employee's period of absence due to a motorcycle accident was a period of 'unpaid leave or unpaid authorized absence' within the meaning of s 22(2)(b). This was found to be so despite the fact that the employee was receiving payments from the Transport Accident Commission during the relevant period.

(Citations omitted)

  1. [59]
    The decision in Bambach is considered in the decision of Hall v Medical Imaging Queensland Pty Ltd [2015] FCCA 326 (Hall).  Hall was also considered by Hartigan IC in Leonard and is relevant to this matter.
  1. [60]
     In Hall, Jarratt J considered whether the employee, Mr Hall, accrued annual leave during a period in which he was absent from work and receiving workers' compensation benefits.  In that decision, Jarratt J addressed the relevant provisions of the WCRA, as cited in Leonard:

[18]  The scheme of the Workers' Compensation and Rehabilitation Act 2003 (Qld) seems to be as follows (all references are to the WCRA unless otherwise stated):

  1. a worker injured in the course of his employment is entitled to compensation: s 108(1);
  1. compensation includes, amongst other payments, an amount payable as weekly payments to the worker during the period of the worker's incapacity and amounts for appropriate medical treatment, hospitalization and rehabilitation of the worker: ss. 9, 145(2), 208(2);
  1. an employer is legally liable for compensation for injury sustained by a worker employed by the employer: s 46(1);
  1. an employer must be insured against the employer's legal liability for compensation to the employer's workers for injury sustained by them: s 48(1);
  1. the employer's insurance must be provided for under a licence as a self-insurer or under a WorkCover policy: s. 48(3);
  1. if an employer is a self-insurer, the employer must pay the compensation: s 109(1);
  1. if not, WorkCover must pay the compensation: s 109(2);
  1. save in circumstances where a worker has made a claim for compensation but that claim has not yet been determined by WorkCover (as provided for in s 109(4)), an employer who is not a self-insurer cannot pay a worker an amount, either in compensation or instead of compensation, that is payable by WorkCover under the Act for an injury sustained by the worker: s 109(3);
  1. if an employer does so, it is liable to penalty equal to 50% of the employer's premium for the period of insurance: s 109A(2);
  1. an employer who has a policy of insurance with WorkCover, is liable to pay a worker compensation for the excess period in respect of a claim for compensation accepted by WorkCover, as calculated according to Chapter 2 Part 3 Division 4 of the Act;
  1. an employer may not insure against payments it is liable to make in the excess period with WorkCover: s 67;
  1. if WorkCover has paid compensation for an injury sustained by a worker when the employer was not insured against the employer's legal liability for compensation to the worker the employer is liable to pay to WorkCover the amount of any payment made by WorkCover to the injured worker together with a penalty equal to 50% of the payment: s 57(2)(b).

[19]  It is apparent from the above that the primary liability for compensation to an injured employee falls upon an employer.  An employer is obliged to insure against that liability. If the employer does insure against that liability, the obligation to make payments to the employee falls upon the insurer. That might be WorkCover, or it might be the employer if they are licensed to self-insure. If the employer is not insured, the employer remains liable and in the event that WorkCover makes a payment to the injured employee it is able to recover from the employer any amounts it may have paid to the inured worker, together with a penalty. But the employer remains primarily liable.  Moreover, in cases where an excess period applies, the employer must pay the compensation payable during the excess period.

…

[24]  As Webster illustrates, a worker might be absent from work due to injury for which his employer has no liability to pay him compensation.  However, the worker might have an entitlement to receive payments in respect of his injury or any disability that it might cause.  That right might arise pursuant to a statutory compensation scheme as was the case in Webster or it might be through a private insurance arrangement entered into by the employee. There are other possibilities.

[25]  What then differentiates between an employee who is absent and paid compensation by reason of a statue like the Workers' Compensation Act (Qld) and a worker who receives payment because of a private insurance arrangement or a statutory 'no fault' compensation scheme?  The answer is supplied by Bambach. That decision demonstrates that, if the employer has an obligation to pay the employee whilst he is absent, then whether the employer pays the employee, or another does on the employer's behalf does not matter. The absence is not unpaid for the purposes of s 22(2)(b) of the Fair Work Act.

…

[28]  In Queensland, that obligation is discharged by the employer undertaking either self-insurance or obtaining a policy of insurance with WorkCover. In the former case, the employer is liable to make payments to the injured worker.  In the latter it is WorkCover. even where WorkCover insures an employer, the employer may be called upon to make payments to the employee where there is an applicable excess period.

[29]  If the respondent's argument is correct, it would lead to the anomalous situation where an injured employee's entitlement to accrue annual leave whilst on an authorised absence from work was dependent upon whether his employer had chosen to self-insure for the employer's liability to the employee for compensation.  The construction contended for by Mr Hall would avoid such an anomalous result and would place all injured workers on the same footing with respect to service for the purposes of s 22 of the Fair Work Act.

  1. [61]
    It is clear from the legal framework established in Bambach, Hall and recently in this jurisdiction by Leonard, that Workers' Compensation payments constitute 'pay'.
  1. [62]
    It follows that while the Applicant was not receiving salary or wages during the time she was receiving workers' compensation payments, she was receiving 'pay' in the form of compensation.
  1. [63]
    This means that the Applicant was not 'absent without pay' for the purposes of s 32 of the IR Act and therefore meets the 'completed year of employment' required to be entitled to annual leave under s 31 of the IR Act.

Sick Leave

  1. [64]
    Section 40 of the IR Act is not accompanied by a section to work out what a 'completed year of employment' is as with ss 31 and 32.  As such, for the purposes of s 40, 'completed year of employment' should be given its ordinary meaning.
  1. [65]
    The Applicant continues to be employed by the Respondent.  There is no break in her employment and therefore, it follows that the time the Applicant was receiving her workers' compensation payments contributes to a 'completed year of employment'.
  1. [66]
    The Applicant was entitled to accrue sick leave while she was receiving workers' compensation benefits.

Was Directive 15/18 in conflict with the legislation?

  1. [67]
    Directive 15/18 has the effect that after a period of three months receiving Workers' Compensation benefits instead of salary paid by the employer, an employee ceases to accrue sick leave and annual leave.
  1. [68]
    Clause 3 of Directive 15/18 deals with legislative authority:

Section 54(1) of the Public Service Act 2008.

Sections 51 and 52 of the Public Service Act 2008 and section 941 of the Industrial Relations Act 2016 apply if there is a conflict with an act, regulation or industrial instrument.

  1. [69]
    Sections 51 and 52 of the PS Act relevantly state:

51 Relationship with legislation

  1. (1)
    If a ruling is inconsistent with an Act or subordinate legislation, the Act or subordinate legislation prevails to the extent of the inconsistency.
  1. (2)
    For subsection (1), a ruling is not inconsistent with an Act or subordinate legislation to the extent that the ruling is at least as favourable as the Act or subordinate legislation.
  1. [70]
    For the reasons set out above, I have determined that as it applied to the Applicant's employment, Directive 15/18 was in conflict with the provisions of the relevant industrial instruments.
  1. [71]
    The provisions in the legislation prevail according to s 51 of the PS Act.  The Applicant was entitled to accrue both annual leave and sick leave during the relevant period that payments ceased.
  1. [72]
    I note that when the new Directive 01/19 took effect, the Applicant once again commenced accruing annual leave and sick leave. 
  1. [73]
    I order that the Applicant be paid the annual leave, annual leave loading and sick leave which would have accrued for the relevant period of time from 19 March 2019 to 13 September 2019.

Footnotes

[1]T1-23.

[2] T1-22, T1.23.

[3] T1-21, ll5-8

Close

Editorial Notes

  • Published Case Name:

    Rankin v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Rankin v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 48

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    10 Feb 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Hall v Medical Imaging Queensland Pty Ltd [2015] FCCA 326
2 citations
Jump To
Cite 1 - [2015] FCCA 326
Cite 2 - [2015] FCCA 326
Leonard v State of Queensland (Queensland Health) [2020] QIRC 207
2 citations
Jump To
Cite 1 - [2020] QIRC 207
Cite 2 - [2020] QIRC 207
Workpac Pty Ltd v M Bambach [2012] FWAFB 3206
2 citations
Jump To
Cite 1 - [2012] FWAFB 3206
Cite 2 - [2012] FWAFB 3206

Cases Citing

Case NameFull CitationFrequency
McIlroy-Ranga v Torres Strait Island Regional Council (No. 2) [2023] QIRC 332 citations
1

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