QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:		
van Rooyen v InfraBuild Trading Pty Ltd [2020] QIRC 061
	
PARTIES:	
	Frederick van Rooyen 
(Applicant)

v

InfraBuild Trading Pty Ltd (ABN 50 007 519 646)
(Respondent) 
	
CASE NO:
	EC/2020/309	
PROCEEDING:
	Application for payment instead of taking long service leave 
	
DELIVERED ON:
	30 April 2020	
MEMBER: 	HARTIGAN IC 	
		
HEARD AT:	On the papers
	
ORDER:
	The application for payment instead of taking long service leave is dismissed. 	
		
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:

 	Industrial Relations Act 2016 (Qld), s 95, s 96 and s 110 

	
Reasons for Decision

Introduction 

[1]	Mr Frederick van Rooyen filed an application on 27 April 2020 for payment instead of taking long service leave. This application was made pursuant to ss 95(2)(a) and 110(1) of the Industrial Relations Act 2016 (Qld) ("IR Act"). 

[2]	Mr van Rooyen is currently employed on a full-time basis as a Production Team Leader by InfraBuild Trading Pty Ltd (ABN 50 007 519 646) ("InfraBuild"). Mr van Rooyen commenced employment with InfraBuild on 26 March 2012. At the time of filing the application, he had been employed for 8 years and approximately one month. 
  
[3]	Section 95(2)(a) provides that an employee is entitled to long service leave on full pay where the employee has completed 10 years continuous service. Additionally, s 110(1) provides that an employee may be paid for all or part of an entitlement to long service leave where the Commission is satisfied the payment should be made on compassionate grounds or on the ground of financial hardship.

[4]	Mr van Rooyen has not completed 10 years of continuous service. 

[5]	Mr van Rooyen applies for payment of a proportionate amount of long service leave, namely, the equivalent of $4,777.33.    

[6]	Pursuant to s 110(1) of the IR Act, 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).

[7]	Section 110(2) of the IR Act, allows for payment instead of long service leave if a relevant industrial instrument provides for the employee to be paid for all or part of the entitlement, and the employee and employer agree by a signed agreement the payment be made and the payment is made in accordance with the industrial instrument. 

[8]	For the reasons referred to below, Mr van Rooyen does not have an entitlement to long service leave within the meaning of ss 110(1) and 110(2) of the IR Act, as he has not completed 10 years of continuous service.

Relevant legislation

[9]	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. 

…

[10]	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. 

Consideration

[11]	Pursuant to section 95(2)(a) of the IR Act, an employee is entitled to long service leave on full pay where the employee has completed 10 years of continuous service. As stated above, Mr van Rooyen does not satisfy this requirement, as he has not completed 10 years of continuous service as at the date of the application filed in the Industrial Registry. At the date of the application, Mr van Rooyen has completed 8 years, 1 month and 6 days of continuous service.

[12]	Section 110(1) of the IR Act allows for an employee to be paid for all or part of an entitlement to long service leave instead of taking the leave under subsection (2) or (3). 

[13]	Some industrial instruments provide that an employee is entitled to long service leave after seven years of continuous service. If such an entitlement is created by an industrial instrument, then an employee may seek to be paid a proportionate payment for long service leave after seven years of continuous service. 

[14]	The Commission issued a Directions Order on 27 April 2020, requesting the employer to identify the relevant industrial instrument. The employer did not identify any industrial instrument and responded that Mr van Rooyen's conditions of employment were contained in a Letter of Offer. 

[15]	Due to the scope of the work undertaken by InfraBuild, the Commission has considered both the Manufacturing and Associated Industries and Occupations Award 2010 ("Manufacturing Award") and the Building and Construction General On-site Award 2010 ("Construction Award") as potentially applying to Mr van Rooyen's employment. 

[16]	However, neither the Construction Award nor the Manufacturing Award deal with payment of long service leave, nor create an entitlement to long service leave after seven years. No other statutory instrument relevantly applies to the applicant's employment and accordingly, any entitlements to long service leave must be accrued and be paid in accordance with the IR Act. 

[17]	Section 110(2) of the IR Act is not satisfied and cannot be relied upon, as Mr van Rooyen does not have an entitlement to take long service leave as he has not completed 10 years of continuous service. 

[18]	For completeness, s 95(3) provides that an employee who has completed less than 10 years of continuous service but at least 7 years of continuous service is entitled to a proportionate payment for long service leave on the termination of the employee's service. 

[19]	Mr van Rooyen is not entitled to a proportionate payment for long service leave pursuant to s 95(3) of the IR Act because his employment is ongoing and the employment has not been terminated. 

Conclusion 

[20]	For the forgoing reasons, Mr van Rooyen's application for payment instead of taking long service leave is dismissed.