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  4. Lapham v State of Queensland (Department of Child Safety, Seniors and Disability Service) - [2025] QIRC 41

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Lapham v State of Queensland (Department of Child Safety, Seniors and Disability Service)[2025] QIRC 41

Lapham v State of Queensland (Department of Child Safety, Seniors and Disability Service)[2025] QIRC 41

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Lapham v State of Queensland (Department of Child Safety, Seniors and Disability Service) [2025] QIRC 041

PARTIES:

Lapham, Carrie Jane

(Applicant)

v

State of Queensland (Department of Child Safety, Seniors and Disability Services)

(Respondent)

CASE NO:

EC/2024/1020

PROCEEDING:

Application for payment instead of taking long service leave

DELIVERED ON:

12 February 2025

HEARING DATE:

On the papers

MEMBER:

O'Neill IC

HEARD AT:

Brisbane

ORDERS:

  1. The application is granted.
  2. The Department of Child Safety, Seniors and Disability Services must pay the Applicant the amount of  $8,894.62 within 21 days of the date from which this order takes effect.
  3. Pursuant to s 541 of the Industrial Relations Act 2016 (Qld) this order will take effect from 16 December 2024.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – application for payment instead of taking long service leave  – payment made by employer by consent prior to order of the Commission – whether payment made without lawful authority

LEGISLATION:

Industrial Relations Act 2016 (Qld) s 110

CASES:

Kartelo v Sciaccas Lawyers Pty Ltd [2019] QIRC 055

Mastop v Kmart Australia Ltd [2024] QIRC 052

Reasons for Decision

Introduction

  1. [2]
    Ms Carrie Lapham has been continuously employed by the Department of Child Safety, Seniors and Disability Services ('the Department') since 24 June 2005. At the time relevant to this application Ms Lapham was employed as a Senior Team Leader.
  2. [3]
    On 13 December 2024, Ms Lapham filed an application pursuant to s 110 of the Industrial Relations Act 2016 (Qld) ('the IR Act') for payment instead of taking long service leave ('LSL').
  3. [4]
    That section relevantly provides that an employee may be paid for all or part of an entitlement to long service leave if the payment is ordered by the Commission where the Commission is satisfied the payment should be made on compassionate grounds or on the ground of financial hardship.
  4. [5]
    Ms Lapham clearly satisfies the requirement in s 95(2) of the IR Act that she has ten years continuous service.
  5. [6]
    In the application Ms Lapham sought payment of a gross sum of $13,158.62.
  6. [7]
    Ms Lapham provided information in the application which established that the payment of long service leave she was applying for was on compassionate grounds and/or financial hardship.[1] Attached to the application was supplementary documentary evidence provided by Ms Lapham to support the information contained in the application.
  7. [8]
    Upon review of the application and supporting evidence the Commission was satisfied that the application had satisfied the necessary criteria in s 110 of the IR Act, and subject to any objection from the Department, it appeared that the discretion to order a payment in favour of Ms Lapham had been enlivened.
  8. [9]
    On 16 December 2024, the Commission issued a directions order to the Department in the usual form seeking the Department to complete the employer's statement and provide the additional information set out in the directions order. The Department was to provide the necessary statement by midday on Wednesday, 18 December 2024.
  9. [10]
    The employer's statement was not received from the Department on 18 December 2024, and consequently, a number of attempts were made by the Industrial Registry to contact the Department to follow up on the provision of this document.
  10. [11]
    On 7 January 2025, the Industrial Registry emailed Ms Lapham seeking alternative contact details for her employer in light of the difficulties that had been experienced in communicating with the Department's Shared Services section.
  11. [12]
    Ms Lapham replied by email on 7 January 2025 that she was under the impression that everything had been finalised because she had received the payment of her long service leave from the Department.
  12. [13]
    On 8 January 2025 an email was received from Ms Christine Turner, Service Delivery Officer, Payroll & Establishment Services, Queensland Shared Services which relevantly provided:

On checking previous requests, there are no details of this form been [sic] forwarded to QIRC.

Carrie received payment for the 180 hrs LSL cash out in pay period ending 27/12/24.

  1. [14]
    Attached to that email was an employer statement in compliance with the direction dated 18 December 2024 and signed by Ms Turner. There is no indication in that statement of an objection to the application by the Department.
  2. [15]
    In the employer's statement, the Department further indicates that the monetary value of the 180 hours of long service leave that Ms Lapham sought to cash in was $13,158.62 gross and $8,894.62 net (after tax).
  3. [16]
    The difficulty with what has occurred is that a payment of LSL to an employee pursuant to s 110 of the IR Act can only occur legitimately and lawfully by order of the Commission. In Kartelo v Sciaccas Lawyers[2], Industrial Commissioner Knight observed when discussing s 53 of the repealed 1999 IR Act:
  1. [81]
    In my view, the purpose of the qualifications at s 53 of the superseded Act, which are expressed in clear and emphatic terms, is to ensure that the cashing out of long service leave, while no longer totally prohibited, remains meaningfully fettered. Only if the employee makes an application to the Commission, and only if the Commission is satisfied the payment should be made on compassionate or financial hardship grounds, may the payment be ordered; in other words, only those "tales which demand compassion" of which the Full Bench remarked will merit an order for payment.[3]

Legislation

  1. [17]
    Section 110 of the IR Act provides:
  1. 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).
  1. The payment may be made if—
  1. a relevant industrial instrument or federal industrial instrument provides for the employee to be paid for all or part of the entitlement; and
  1. the employee and employer agree by a signed agreement the payment may be made; and
  1. the payment is made in accordance with the industrial instrument.
  1. 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. The commission may order the payment only if satisfied the payment should be made—
  1. on compassionate grounds; or
  1. on the ground of financial hardship.
  1. The full bench must not make a general ruling that allows an employee to be paid for an entitlement to long service leave instead of taking the leave.
  1. In this section—

employee includes a registered worker under each of the following Acts—

  1. the Building and Construction Industry (Portable Long Service Leave) Act 1991;
  1. the Community Services Industry (Portable Long Service Leave) Act 2020;
  1. the Contract Cleaning Industry (Portable Long Service Leave) Act 2005.

entitlement to long service leave includes an entitlement to long service leave under each of the following Acts—

  1. the Building and Construction Industry (Portable Long Service Leave) Act 1991;
  1. the Community Services Industry (Portable Long Service Leave) Act 2020;
  1. the Contract Cleaning Industry (Portable Long Service Leave) Act 2005.
  1. [18]
    Section 541 of the IR Act provides:
  1. 541
    Decisions generally

The court or commission may, in an industrial cause do any of the following –

  1. make a decision it considers just, and include provision for preventing or settling the industrial dispute or dealing with the industrial matter to which the cause relates, without being restricted to any specific relief claimed by the parties to the cause;…
  1. [19]
    Section 9 of the IR Act provides:
  1. 9
    What is an industrial matter
  1. An "industrial matter" is a matter that affects or relates to -
  1. work done or to be done; or
  1. the privileges, rights or functions of -
  1. employers or employees; or…

(Emphasis added)

Consideration

  1. [20]
    The Commission has recently had cause to deal with the same issue in Mastop v Kmart Australia Ltd[4] ('Mastop').
  2. [21]
    In that matter Commissioner Dwyer made the following pertinent observations which appear to apply with equal force to Ms Lapham's application:
  1. [14]
    LSL is a statutory entitlement that cannot be compromised by mutual agreement except as prescribed by the IR Act. Further, in circumstances where s 110(2) of the IR Act does not apply, payment instead of LSL can only occur legitimately by order of the Commission. Any LSL payment made contrary to the provisions of s 110 of the IR Act will prima facie not discharge the employer's LSL liability and might constitute an overpayment to the employee.
  1. [15]
    Having regard to the provisions of the General Retail Industry Award 2020 it is clear that s 110(2) of the IR Act has no application. In those circumstances any payment made by Kmart to Mr Mastop purporting to be instead of LSL has not discharged or reduced Kmart's LSL liability to Mr Mastop as at July 2023. Additionally, any payment made to Mr Mastop in August 2023 purporting to be instead of LSL is, in these circumstances, technically an overpayment which he is liable to repay. Plainly, given the express intention of the parties to the contrary, this situation is unsatisfactory.
  1. [16]
    Applications of this nature are rarely controversial. When all parties comply with directions of the Commission, the granting of such orders is both a simple and routine function of the Commission.
  1. [17]
    For reasons set out above this matter has become complicated by the parties disregarding the directions issued on 4 July 2023 and simply entering into what amounts to a private arrangement for the payment of LSL instead of taking it. No criticism is made of either party. Their actions were well intentioned albeit they did not conform with the direction or the IR Act. But their actions have placed each of them in jeopardy of further dispute in respect of LSL.[5]
  1. [22]
    In an attempt to address the issue, the matter was called on for mention on Tuesday, 28 January 2025. No response was received from the Department to the Notice of Listing and there was no appearance on behalf of the Department at the mention.
  2. [23]
    The Commission then issued a further Directions Order on 30 January 2025 requiring the Department to file and serve an affidavit setting out the circumstances in which the payment of the long service leave was made to Ms Lapham. The affidavit was to be filed by the Department on or before 4:00 pm on Friday, 7 February 2025. The requested affidavit was not provided by the Department.
  3. [24]
    The Industrial Registry and my Associate followed up with representatives from the Department on 10 February 2025. Belatedly on 11 February 2025, an affidavit from Mr Alistair Kerr, a Payroll Officer employed by Queensland Shared Services sworn on 11 February 2025 was provided.
  4. [25]
    In that affidavit, Mr Kerr provides some explanation as to the circumstances in which the payment was made to Ms Lapham without an order from the Commission. In the affidavit Mr Kerr deposes as follows:
  • A payment of 60 hours of long service leave ($13,158.68 gross, $8,894.62 net) was processed by payroll and paid to Ms Lapham on 17 December 2024 by direct deposit to her main bank account.
  • The payment was processed in error by someone not familiar with the QIRC LSL Advance process and that person did not realise that the form received was only for information, and not the actual Order approving the payment that is usually received.
  • Ms Lapham had continuous service from 16 May 2005 and was eligible to take LSL from 9 August 2016.
  1. [26]
    Like the situation in Mastop, there appears to be no controversy between the parties that Ms Lapham had satisfied the requirements of s 110 of the IR Act, and the Respondent has not objected to the payment of the LSL.
  2. [27]
    In the Mastop decision, Commissioner Dwyer adopted what appears to be a pragmatic and eminently sensible approach to regularise the payment made by Kmart to Mr Mastop (citations omitted):
  1. [19]
    There are a number of ways in which the parties error could be remedied but the least burdensome is for the Commission to make orders that have the effect of characterising the payment made by Kmart in August 2023 as being a payment made in accordance with an order of the Commission pursuant to s 110 of the IR Act.
  1. [20]
    Given that such an order is required to be retrospective, it would seem to be appropriate circumstances for the use of the powers available to the Commission pursuant to s 541(1) of the IR Act. The Commission is satisfied that Mr Mastop's application is an 'industrial cause' as contemplated by s 541 of the IR Act.[6]
  1. [28]
    I can see no utility in trying to reinvent the wheel in the present case, I therefore intend to follow the path blazed by Commissioner Dwyer in Mastop to regularise the payment made to Ms Lapham.
  2. [29]
    I am satisfied that Ms Lapham's application is an 'industrial cause' as contemplated by s 541 of the IR Act.[7]
  3. [30]
    I am further satisfied on the basis of the information contained in Ms Lapham's Form 13 application and the affidavit of Mr Kerr sworn on 11 February 2025, that Ms Lapham ought to have payment of her LSL in accordance with the request in her application filed on 13 December 2024.
  4. [31]
    Noting that Ms Lapham has already received payment of an amount of $8,894.62 from the Department in satisfaction of her request, the Commission intends to make orders granting Ms Lapham's application, but which simultaneously recognise the payment made by the Department in December 2024 discharges the Department's LSL obligations to Ms Lapham by the amount paid.
  5. [32]
    For the avoidance of any doubt, I note that the intent of the orders that follow is to give effect to the payment made by the Department to Ms Lapham on or about 17 December 2024 as if that payment was made in response to an Order of the Commission pursuant to s 110 of the IR Act, and that no further amount is required to be paid by the Department to Ms Lapham in response to her application filed on 13 December 2024.

Orders

  1. [33]
    In the circumstances it is Ordered that:
    1. The application is granted.
    2. The Department of Child Safety, Seniors and Disability Services must pay the Applicant the amount of  $8,894.62 within 21 days of the date from which this order takes effect.
    3. Pursuant to s 541 of the Industrial Relations Act 2016 (Qld) this order will take effect from 16 December 2024.

Footnotes

[1]Section 110(4) of the IR Act.

[2][2019] QIRC 055.

[3]Ibid, [81] per Knight IC.

[4][2024] QIRC 052.

[5]Mastop v Kmart Australia Ltd [2024] QIRC 052, [14]-[17].

[6]Ibid, [19]-[20] per Dwyer IC.

[7]See Sch. 5 and s 9 of the IR Act.

Close

Editorial Notes

  • Published Case Name:

    Lapham v State of Queensland (Department of Child Safety, Seniors and Disability Service)

  • Shortened Case Name:

    Lapham v State of Queensland (Department of Child Safety, Seniors and Disability Service)

  • MNC:

    [2025] QIRC 41

  • Court:

    QIRC

  • Judge(s):

    O'Neill IC

  • Date:

    12 Feb 2025

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
Kartelo v Sciacca's Lawyers Pty Ltd [2019] QIRC 55
2 citations
Jump To
Cite 1 - [2019] QIRC 55
Cite 2 - [2019] QIRC 55
Mastop v Kmart Australia Ltd [2024] QIRC 52
3 citations
Jump To
Cite 1 - [2024] QIRC 52
Cite 2 - [2024] QIRC 52
Cite 3 - [2024] QIRC 52

Cases Citing

Case NameFull CitationFrequency
Van Eden v Bunnings Group Limited [2025] QIRC 2232 citations
1

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