Infosys Technologies Limited v Fox

The respondent, an industrial inspector, made an application to the Queensland Industrial Relations Commission for a determination that an employee of the appellant was entitled to long service leave payments under s 93 Industrial Relations Act 2016. That section, together with s 95, entitles employees to long service leave where they have accrued 10 years of “continuous service with the same employer … partly in … the State”.  The employee had worked for the appellant for over 10 years but had only worked for the appellant in Queensland for 18 days. The Full Bench of the Industrial Relations Commission found that the appellant was entitled to long service leave. The appellant appealed on the grounds that the Commission erred in its construction of “continuous service” and that it should not have found that the employee qualified for long service leave. On appeal Bond JA, with whom Brown JA and Crow J agreed, upheld the Full Bench’s decision. The appeal was dismissed with costs.

Bond and Brown JJA and Crow J

1 April 2025

The employee commenced employment with the appellant on 5 March 2012. [11]. The employee’s engagement letter provided that the location of his initial reporting and training would be Mysore, India, but that he might be deployed to other locations (at which point, the compensation applicable to that specific jurisdiction would be payable to him). [10]–[11].

On 13 June 2018, the employee was assigned to Melbourne, Victoria and entered into a “deputation agreement” to that effect with the appellant. [11]–[13]. On 27 July 2020, the employee commenced another “deputation” with Telstra, a client of the appellant, in Melbourne. [14]. That assignment was extended on 15 December 2020. [14].

On 8 March 2022, the employee requested to transfer to Telstra’s office in Brisbane, which was accepted by the appellant. He was due to commence work in Brisbane on 14 March 2022. [16]–[18]. That commencement date was delayed due to the employee’s health issues.

On 16 March 2022, whilst the employee was still in Victoria, he resigned from his employment with the appellant. He thereafter served out his contractual notice period by working in Melbourne until 27 March 2022, before working in Brisbane from 28 March 2022 until his employment ceased on 14 April 2022. [19].

The employee’s employment with the appellant spanned 10 years, one month and 10 days, summarised by Bond JA as follows: [20]:

a)6 years, 3 months and 10 days in India (62.09% of the total);

b)3 years, 9 months and 13 days in Melbourne (37.42% of the total); and

c)18 days in Brisbane (0.49% of the total).

The employee inquired with the Office of Industrial Relations as to whether he was entitled to a long service leave entitlement under the Industrial Relations Act 2016 (“the Act”). Section 95(2) of the Act provides that an employee will be entitled to long service leave if the employee has completed 10 years continuous service. Section 93 defined continuous service as “continuous service with the same employer, whether wholly in the State or partly in and partly outside the State”.

The respondent, an industrial inspector, filed an application on the employee’s behalf for proportionate payment of long service leave. [3]. That application was referred for determination to the Full Bench of the Queensland Industrial Relations Commission pursuant to s 486 of the Act. The appellant submitted to the Full Bench that to qualify as continuous service of 10 years partly in the State of Queensland, the part of the service in the State must amount to a substantial proportion of the total continuous service. [32]. The Full Bench rejected that submission and found that the employee had obtained entitlement to long service leave payments. [32].

The appellant appealed the decision of the Full Bench on two grounds: that it erred in its legal construction of “continuous service”; and that it should have found that the employee had not completed 10 years of continuous service “partly … in the State”. [6]. The appellant particularised the first ground partly on the basis that 18 days service out of 10 years did not constitute service “partly … in the State”. [6]. The respondent submitted that this particular went to an error of fact and not an error of law. [27]. Bond JA, with whom Brown JA and Crow J agreed, held that the correct question on appeal was whether the Full Bench applied the wrong legal test in finding that the employee was entitled to long service leave payments. [29], [31].

On that question, Bond JA considered that the crux of the issue was whether an employee’s “service” was geographically located in Queensland at any point. [35]. That will not be so merely where an employee is required to carry out some work in the geographical boundaries of Queensland. [35]. However, here, the employee was assigned to work in Brisbane and his contractual employment location was updated accordingly. [40]. It did not matter that the employee’s work in Brisbane took place after he had resigned because his employment contract was still on foot. [40]. The Court accordingly found that the order made by the Full Bench was correct, and the appeal was dismissed with costs. [41]–[44].

N Powys