Craig Geoffrey Fox v Programmed Integrated Workforce Ltd (No. 2)

Case [2022] QIRC 281

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Craig Geoffrey Fox v Programmed Integrated Workforce Ltd (No. 2) [2022] QIRC 281

PARTIES:

Fox, Craig Geoffrey
(Applicant)

 v

Programmed Integrated Workforce Ltd
(Respondent)

CASE NO.:

B/2021/4

PROCEEDING:

Application for a proportionate payment of long service leave

DELIVERED ON:

 27 July 2022

HEARING DATE:

25 November 2021
MEMBER:

Merrell DP
HEARD AT:

Brisbane

ORDER:

That pursuant to s 477(1)(a)(i) of the Industrial Relations Act 2016, the Respondent pay Mr Andrew Haining the amount of $8,099.24, less applicable tax, if any, within 22 days of the date of this order.
CATCHWORDS:

INDUSTRIAL LAW - QUEENSLAND - RECORDS AND WAGES - application made by Inspector appointed pursuant to s 899 of the Industrial Relations Act 2016 for an order that the Respondent pay an employee's unpaid wages in the form of a proportionate payment of long service leave - Respondent is a labour hire company that provided certain labour to the Brisbane City Council - Brisbane City Council subsequently decided not to source labour from the Respondent and to source labour from a third-party - employee was employed by the Respondent and then became employed by the third-party - Applicant contends that there was no transfer of calling between Respondent and the third-party, that there was a break in the employee's continuous service and that the Respondent dismissed the employee for reasons other than the employee's conduct, capacity or performance, giving rise to a liability to the employee for proportionate payment of long service leave - Respondent contends it is not liable for the proportionate payment of the employee's long service leave because the employee's employment came to an end by operation of law and there was no break in the employee's continuous service because of a transfer of calling within the meaning of s 132(1) of the Industrial Relations Act 2016 - construction of s 132(1) of the Industrial Relations Act 2016 - whether the Respondent dismissed the employee for another reason other than the employee's conduct, capacity or performance - whether there was a transfer of calling so that there was no break in the employee's continuous service - Respondent dismissed the employee for another reason other than the employee's conduct, capacity or performance - the employee was not a transferred employee because there was no transfer of calling within the meaning of s 132(1) of the Industrial Relations Act 2016 - Respondent liable to employee for proportionate payment of long service leave

LEGISLATION:

Acts Interpretation Act 1954, s 14A

Industrial Conciliation and Arbitration Acts Amendment Acts, 1932 to 1952, s 10A and s 10B

Industrial Conciliation and Arbitration Acts Amendment Act of 1952, s 6

Industrial Conciliation and Arbitration Act 1961, s 5 and s 17

Industrial Relations Act 1990, s 241

Industrial Relations Act 1999, s 43 and s 69

Industrial Relations Act 2016, s 31, s 95, s 102, s 103, s 131, s 132, s 341, s 477 and s 899

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AGLC
Craig Geoffrey Fox v Programmed Integrated Workforce Ltd (No. 2) [2022] QIRC 281
Case
[2022] QIRC 281
Decision Date

CaseChat Overview and Summary

In Craig Geoffrey Fox v Programmed Integrated Workforce Ltd (No. 2), the primary issue before the court was whether Programmed Integrated Workforce Ltd (PIW) was liable for the proportionate payment of long service leave to an employee, Mr Andrew Haining, who had been employed by PIW and subsequently by a third-party, Randstad, following a change in the labour hire contract with the Brisbane City Council. PIW contended it was not liable for the proportionate payment of Mr Haining's long service leave, arguing that his employment ended by operation of law and that there was no break in his continuous service due to a transfer of calling under s 132(1) of the Industrial Relations Act 2016. Conversely, Mr Haining asserted that there was no transfer of calling between PIW and Randstad, resulting in a break in his continuous service, and that he was dismissed for reasons other than his conduct, capacity or performance, thereby entitling him to a proportionate payment of long service leave.

The court had to determine whether PIW dismissed Mr Haining for a reason other than his conduct, capacity or performance, and whether there was a transfer of calling under s 132(1) of the Act that would prevent a break in Mr Haining's continuous service. The court examined the nature of the employment contract, the circumstances surrounding the transition from PIW to Randstad, and the implications of these events on Mr Haining's employment status and entitlement to long service leave. After considering the evidence and the relevant statutory provisions, the court found that PIW dismissed Mr Haining for reasons other than his conduct, capacity or performance, and that there was no transfer of calling, resulting in a break in Mr Haining's continuous service. Consequently, PIW was liable to pay Mr Haining a proportionate payment of long service leave.

In summary, the court ruled that PIW was liable to pay Mr Haining $8,099.24 gross, being the proportionate payment of long service leave that was payable and unpaid by PIW. The court ordered PIW to pay this amount to Mr Haining within 22 days of the date of the order, pursuant to s 477(1)(a)(i) of the Industrial Relations Act 2016.

Orders

Orders of the court

That pursuant to s 477(1)(a)(i) of the Industrial Relations Act 2016, the Respondent pay Mr Andrew Haining the amount of $8,099.24, less applicable tax, if any, within 22 days of the date of this order.

Background

Background to the litigation

For the reasons that follow, I find that PIW is liable to pay Mr Haining the sum of $8,099.24 gross, being the proportionate payment of long service leave which is payable and unpaid to Mr Haining by PIW.Background By way of summary from the agreed statement of facts:·both PIW and Randstad are labour hire companies;[7][7] Exhibit 1, paras. 1 and 2.·on 20 June 2011, PIW entered into a labour hire contract with the Council whereby it undertook to provide temporary administration and trades labour hire services to the Council ('PIW's labour hire contract'), including the provision of individuals employed by PIW, and on-hired to the Council, in an occupation described as 'gardener/general hand';[8][8] Exhibit 1, para. 4.·from 20 June 2011 to 2 August 2019, pursuant to its undertakings under PIW's labour hire contract, PIW on-hired individuals to the Council in an occupation described as gardener/general hand;[9][9] Exhibit 1, para. 6.·on 3 October 2011, PIW entered into a casual employment agreement with Mr Haining under which, amongst other things, Mr Haining was recorded as available to accept offers of casual employment from PIW and that by being recorded as available to accept offers of casual employment, he (Mr Haining) was not guaranteed work;[10][10] Exhibit 1, para. 20.·in late 2018, the Council sought tenders for the provision of administration and trades labour hire services to it;[11][11] Exhibit 1, para. 7.·PIW submitted a tender for provision of those services but was unsuccessful;[12] [12] Exhibit 1, para. 8·on 1 July 2019, the tender was awarded to Randstad;[13][13] Exhibit 1, para. 9.·from 3 October 2011 to 2 August 2019, PIW employed Mr Haining as a casual employee on-hired to, and assigned to perform work for, the Council in the occupation of 'gardener/general hand' for the purposes of fulfilling PIW's obligations under PIW's labour hire contract, such that Mr Haining had a period of continuous service with PIW of seven years and 10 months;[14][14] Exhibit 1, para. 21.·Mr Haining did not enter into another casual employment contract with PIW within three months after 2 August 2019;[15][15] Exhibit 1, para. 22.·since 3 August 2019, Randstad:- pursuant to a labour hire contract it has with the Council, has been engaged in the calling of providing temporary administration and trades labour hire services to the Council, including the provision of individuals employed by Randstad, and on-hired to the Council, in an occupation described as 'gardener/general hand'; and - has had beneficial use of the Council's assets which PIW previously had beneficial use of, and which related to, or were used in connection with, the work performed by the relevant PIW employees who came to perform the work for Randstad;[16] ·in the week ending 2 August 2019, Mr Haining entered into a casual employment contract with Randstad under which he agreed to perform, from 5 August 2019, the same work he had performed as an employee of PIW (on-hired to, and assigned to perform work for, the Council) for the purposes of fulfilling Randstad's obligations under the labour hire contract Randstad had with the Council;[17]·from 5 August 2019 to 27 October 2019, Randstad employed Mr Haining as a casual employee to perform work which was materially the same as the work he had performed as an employee of PIW on-hired to, and assigned to perform work for, the Council in the occupation of gardener/general hand;[18] and·on 27 October 2019, because of illness, Mr Haining terminated his employment with Randstad.[19] On 2 August 2019, did PIW dismiss Mr Haining?[16] Exhibit 1, para. 19.[17] Exhibit 1, para. 27.[18] Exhibit 1, para. 28.[19] Exhibit 1, para. 29.The evidence

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The consequence is that as at 2 August 2019, pursuant to s 95(4)(c)(i) of the Act, because Mr Haining was dismissed by PIW for another reason other than his conduct, capacity or performance, PIW was and is liable to pay Mr Haining a proportionate payment of long service leave.Conclusion For the reasons given, PIW is liable to pay Mr Haining the amount of $8,099.24 gross as a proportionate payment of long service leave.Order I make the following order:That pursuant to s 477(1)(a)(i) of the Industrial Relations Act 2016, the Respondent pay Mr Andrew Haining the amount of $8,099.24, less applicable tax, if any, within 22 days of the date of this order.

Ratio Decidendi

Legal Principle Established

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