Kiropoulos v Link Group
[2020] FCCA 205
•3 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KIROPOULOS v LINK GROUP | [2020] FCCA 205 |
| Catchwords: INDUSTRIAL LAW – SMALL CLAIMS – Underpayment of annual leave and long service leave entitlements – whether employee accrues leave entitlements while receiving workers’ compensation payments pursuant to the Accident Compensation Act 1985 (Vic) – application of section 130 of the Fair Work Act 2009 (Cth) – application allowed. |
| Legislation: Accident Compensation Act 1985 (Vic), ss.97, 114(2D) Fair Work Act 2009 (Cth), s.130 |
| Cases cited: Anglican Care v NSW Nurses and Midwives’ Association [2015] FCAFC 81 |
| Applicant: | JOHN KIROPOULOS |
| Respondent: | LINK GROUP |
| File Number: | MLG 2586 of 2019 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 3 February 2020 |
| Date of Last Submission: | 3 February 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 3 February 2020 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Advocate for the respondent: | In person |
| Solicitors for the respondent: | None |
ORDERS
Within 21 days, the respondent pay to the applicant outstanding annual leave and long service leave entitlements calculated by reference to his service up to, and including the date of termination of his employment on 29 November 2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2586 of 2019
| JOHN KIROPOULOS |
Applicant
And
| LINK GROUP |
Respondent
REASONS FOR JUDGMENT
(Revised from the Transcript)
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This was an application for underpayment of accrued annual leave and long service leave entitlements on termination of employment.
The matter came before this court in the small claims jurisdiction. As such, Mr Kiropoulos appeared on his own behalf and Ms Broadhead appeared by telephone as the respondent’s representative.
The background facts were not largely in dispute.
Mr Kiropoulos was employed in a call centre. He was initially employed on a full time basis with Superpartners, and then with the respondent Link Group, which took over Superpartners.
In or about February 2016, Mr Kiropoulos suffered a work-related injury and lodged a WorkCover claim. There was a dispute as to the exact date when he commenced leave for his injury, but nothing turned on that for the purposes of this application.
It is common ground that the applicant was absent from work and in receipt of weekly payments from at least 1 June 2016 to the date of termination of his employment on 21 November 2018. However, there was a minor dispute as to whether he had a period of some other form of leave towards the end of his employment.
Mr Kiropoulos attached to his application a screenshot of his leave entitlements which he said he took from the employer’s computer system shortly before his employment came to an end. Relevantly, that screenshot provides that he had a balance of approximately 372 hours of accrued annual leave, and just under 320 hours of accrued long service leave.
The respondent did not take issue with this as being an accurate reflection of the respondent’s leave records at or about the time of the applicant’s employment coming to an end. However, the respondent submitted this information was not accurate as it provided a projection of the leave calculations as at a particular point in time. So much was conceded by the applicant.
The annual leave was calculated to 31 January 2019, and the long service leave was calculated to 30 November 2018.
The respondent submitted that even if the applicant’s application was accepted, his entitlement could not be calculated by reference to these figures, as they would need to be adjusted to reflect the fact that the employee’s employment actually came to an end on 29 November 2018.
The respondent did not submit any alternative calculations up to and including the date of termination.
Moreover, and perhaps more importantly, the respondent submitted that as the applicant was absent from work and in receipt of workers’ compensation payments from early to mid 2016 to the date of termination, he was not entitled to accrue or take any annual leave during that time. Consequently, the leave balance contained in the employer’s records required an adjustment which was carried out prior to the applicant receiving his final payment.
This argument was based on the respondent’s submission that section 130 of the Fair Work Act 2009 (Cth) (“FW Act”) provides there is no entitlement to accrued annual leave or long service leave during a period where an employee is absent from work and in receipt of workers’ compensation payments.
Section 130(1) of the FW Act relevantly provides:
An employee is not entitled to take or accrue any leave or absence (whether paid or unpaid) under this Part during a period (a compensation period ) when the employee is absent from work because of a personal illness, or a personal injury, for which the employee is receiving compensation payable under a law (a compensation law ) of the Commonwealth, a State or a Territory that is about workers' compensation.
Section 130(2) however, goes on to say:
Subsection (1) does not prevent an employee from taking or accruing leave during a compensation period if the taking or accruing of the leave is permitted by a compensation law.
The court was today assisted by a representative from the Fair Work Ombudsman who appeared as amicus curiae.
The court was referred to the decision of the Full Court of the Federal Court in Anglican Care v NSW Nurses and Midwives’ Association [2015] FCAFC 81 (“Anglican Care”).
In that case, Anglican Care submitted an argument similar to that advanced by the respondent today. The Full Court considered section 130 of the FW Act and, in particular, what was meant by the word ‘permitted’ in section 130(2). Of note, the application originated in New South Wales, and therefore the Full Court had regard to the workers’ compensation legislation relevant in that state.
The question in the proceeding before me was whether the Accident Compensation Act 1985 (Vic) (“AC Act”) permitted the taking of or accruing of leave such that it fell within the operation of section 130(2) of the FW Act.
Relevantly, in Anglican Care, their Honours Bromberg and Katzmann JJ concluded that:
The purpose of section 130(2) is to enable employees who are absent from work and in receipt of compensation to retain their entitlements to leave over the same period as long as that course is sanctioned, condoned or countenanced by the relevant compensation law.[1]
[1] Anglican Care v NSW Nurses and Midwives’ Association [2015] FCAFC 81 at [64].
Similarly, after considering the history of section 130, Jessup J said:
…the word ‘permitted’ in section 130(2) of the FW Act should be construed in the sense of not prevented, prohibited or restrained.[2]
[2] Anglican Care v NSW Nurses and Midwives’ Association [2015] FCAFC 81 at [16].
The respondent did not refer to any provision in the AC Act which could be said to prevent, prohibit or restrain the taking or accrual of either long service leave or annual leave during a compensation period.
Indeed, in Anglican Care, reference was made by Bromberg and Katzmann JJ to section 97(1) of the AC Act, which relevantly provides:
Except as provided in section 96, regard shall not be had, in respect of the entitlement to, or amount of, compensation under this Part, to any sum paid or payable –
…
d) in lieu of accrued annual leave or long service leave.
This section does not prohibit nor restrain an employee from taking or accruing long service leave or annual leave whilst in receipt of weekly payments.
In addition, it appears that the prospect that an employee will take or accrue long service leave or annual leave is also contemplated by section 114(2D) of the AC Act, which deals with the termination or alteration of weekly payments.
I therefore find that section 130 of the FW Act does not prohibit the accrual or taking of annual leave or long service leave during the period in respect of which the applicant was in receipt of weekly payments.
It is now necessary to turn to the quantification of the applicant’s claim.
The applicant submitted that he was entitled to be paid the annual leave and long service leave specified in the document attached to his application.
This was not withstanding that the applicant acknowledged that the balance in that document was a projection, and included a period of time which extended beyond his employment with respondent.
On the basis of the facts before me, I find that the applicant was entitled to payment for his accrued annual leave and long service leave up to the date of termination of his employment.
For completeness, and for the reasons which I have just outlined, I find that he was entitled to continue to accrue annual leave and long service leave even during the period in which he was receiving weekly payments pursuant to the AC Act.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 21 February 2020
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