Prasad v QLeave
[2022] QIRC 9
•14 January 2022 20 December 2021
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Prasad v QLeave [2022] QIRC 009 |
PARTIES: | Prasad, Chandrika v QLeave |
CASE NO: | EC/2021/721 |
PROCEEDING: | Application for payment instead of taking long service leave |
DELIVERED ON: MENTION DATE: | 14 January 2022 20 December 2021 |
MEMBER: HEARD AT: | Hartigan IC Brisbane and on the papers |
ORDER: | The application is dismissed. |
| CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – 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: APPEARANCES: | Industrial Relations Act 2016 (Qld), s 110 Ms M. Prasad, for the Applicant Ms M. Lee, for the Respondent |
Reasons for Decision
Introduction
The Applicant, Mr Chandika Prasad ('Mr Prasad'), through his agent and power of attorney, Ms Madhuri Prasad, filed a Form 13 - Application for payment instead of taking long service leave in the Industrial Registry on 6 December 2021. Mr Prasad's long service leave is provided for by QLeave and is regulated by the Building and Construction Industry (Portable Long Service Leave) Act 1991 (Qld) ('BCI Act').
Following the filing of the application, a directions order was issued, requiring a statement from QLeave to identify, amongst other things, Mr Prasad's entitlement to long service leave (full entitlement accrued to-date).
On 15 December 2021, correspondence was received from QLeave in response to the directions order and in summary, noted that:
(a) Mr Prasad's registration date with QLeave is 1 July 2008;
(b) Mr Prasad's service credit balance is in the amount of 864 service credits;
(c) this amount of service credits does not meet the legislative requirements of 10 years recorded service with QLeave and 2200 service credits, and
(d) QLeave is unable to proceed with this matter.
On 16 December 2021, by written correspondence, the Applicant's agent responded to QLeave and contended, in summary, that:
(a) the request was made under the special circumstances of hardship;
(b) Mr Prasad's former employer has failed to deposit service credits from a period of service in 2010;
(c) Mr Prasad worked until the age of 65 and had to retire under medical grounds which warrants special consideration; and
(d) there is a provision for special circumstances in the industrial relations law.
A mention was held on 20 December 2021, to address the issue as to whether Mr Prasad had accrued an entitlement to long service leave. During the course of the mention, the Applicant's agent indicated that she wished to continue with the application. Consequently, I issued further directions with respect to the filing of submissions.
The further directions required QLeave to file in the Industrial Registry and serve on the Applicant, written submissions addressing Mr Prasad's current entitlement to long service leave and provide a breakdown of what QLeave contended Mr Prasad needed to accrue in order to reach the full entitlement of long service leave and required the Applicant to advise the Industrial Registry and QLeave whether the Applicant agreed with the information provided by QLeave.
Both parties complied with the further directions order.
Relevantly, QLeave submitted as follows:
…
Breakdown of what Mr Chandrika Prasad would have been required to accrue for an entitlement for LSL payment
For Mr Prasad to be entitled to a 10 year long service leave claim, he would need to have accrued a further 1336 service credits. A 10 year long service leave claim would require a total of 2200 service credits accrued. For further information regarding service credits and long service years, please refer to sections 51 and section 52(2) of the BCI Act and explanation below.
QLeave – 7 year Leaving the Industry Claim – 1155 days service
The earliest claim that Mr Prasad may have sought via QLeave (and not the Queensland Industrial Relations Commission) would have been a ‘Leaving the Industry Claim’ (see section 57 (2)). However, Mr Prasad also does not have enough accrued service for such a claim.
A Leaving the Industry Claim requires an accrual of at least 1155 days service and for the applicant to have been registered as an eligible worker in the building and construction industry for at least 7 years. Furthermore, the applicant must intend to permanently stop work in the building and construction industry.
Mr Prasad needed to have accrued a further 291 service credits, to have applied to QLeave
…
The Applicant's agent responded, as follows:
Yes, I do agree with q leave calculations.
However, there's no demonstration from them to show that any attempt was made to follow up on employer "Outback and cars" for them not abiding by regulations to deposit the credits for 2010. Yes, if they have liquidated, then what's the provision for that under "Fair work"
Yes, I understand that his credits do not cover for 7yrs prorate
As per their requirement and regulations Section 57 Subsection3 (c) (i), Chandrika, has permanently left the service.
As per Section 51, he is entitled to a credit of 1yr, which he should duly be paid for
We are applying based on special circumstances provisions in the Fair work act and to the least as per Section 51 of Qleave regulations.
The question for my determination is whether Mr Prasad has an entitlement to long service leave within the meaning of the Industrial Relations Act 2016 (Qld) ('IR Act').
Is there an entitlement to long service leave?
Section 56 of the BCI Act sets out the requirements for making an application for payment instead of long service leave and is set out in the following terms:
56 Application for entitlement to long service leave or payment instead of long service leave
(1)A registered worker who has service credits in the register of workers may apply to the authority in the approved form for—
(a)long service leave; or
(b)payment for the long service leave to which the registered worker is entitled under section 57.
(2)If the building and construction industry award or agreement applying to the worker provides for the payment of all or part of an entitlement to long service leave instead of taking the leave or part of the leave, the worker and the authority may agree, by signed agreement, that the worker be paid for all or part of the entitlement in accordance with the award or agreement.
(3)If no building and construction industry award or agreement provides for the worker to be paid all or part of an entitlement to long service leave instead of taking the leave or part of the leave, payment may be made only if—
(a)the worker has accrued 10 years service in the register of workers; and
(b)the industrial relations commission has ordered the payment under the Industrial Relations Act 2016, section 110.
…
Section 57 of the BCI Act sets out the entitlement to long service leave as follows:
57 Entitlement to long service leave
(1)The entitlement to long service leave is—
(a)If the registered worker has accrued 10 years service in the register of workers—8.67 weeks; and
(b)after 10 years service, leave accruing for each additional day’s service recorded in the register at the rate that 8.67 weeks bears to 10 years.
(1A) Subsection (1B) applies if—
(a)a registered worker has accrued at least 5 years but less than 10 years service; and
(b)the worker has been credited with retrospective service credits under section 54; and
(c)the worker—
(i)intends to permanently stop work in the building and construction industry; or
(ii)dies.
(1B)The entitlement to long service leave is a period that bears to 8.67 weeks the proportion that the worker’s service credits bear to 10 years service.
(2)Subsection (3) applies if a worker—
(a)either —
(i)has accrued at least 1540 days service; or
(ii)has—
(A)accrued at least 1155 days service; and
(B)been a registered worker for at least 7 years in the register of workers kept under this Act, or in a similar register or record kept under a corresponding law; and
(b)has not been credited with retrospective service credits under section 54; and
(c)either —
(i)intends to permanently stop work in the building and construction industry; or
(ii)dies.
(3)The entitlement to long service leave is a period that bears to 8.67 weeks the proportion that the worker’s accrued service bears to 10 years service.
(4)Long service leave is exclusive of any public holiday that happens during a period of long service leave that is taken.
Section 51 of the BCI Act sets out what is considered a year's service and is in the following terms:
51 Year's service
For the purposes of this Act, a worker is taken to have a year’s service for every 220 days’ service that is credited to the worker in the register of workers kept under this Act or in a like register or record kept under a corresponding law.
Section 52 of the BCI Act sets out the limitations on service credits and provides as follows:
52 Limitations on service credits
(1) Subject to section 54, a person must not be credited in the register of workers with any day’s service in the building and construction industry unless that day was on or after the date on which the person became a registered worker.
(2) A registered worker must not be credited in the register of workers with more than 220 days’ service in the building and construction industry for a financial year.
(3)If —
(a) in respect of a financial year a registered worker would, but for this subsection, be entitled to be credited in the register of workers with a period of service and to be credited in a like register or record kept under a corresponding law with another period of service; and
(b)the periods of service together amount to more than 220 days;
the period of service with which the worker is to be credited in the register of workers kept under this Act must be adjusted so as to provide that the total period with which the worker is credited in the registers does not exceed 220 days.
(4)The adjustment referred to in subsection (3) must be made—
(a) when an application is made under this Act or a corresponding law for payment of long service leave to be made in respect of a period of service that includes either or both of the periods of service referred to in that subsection; or
(b)at such other time as the authority may decide.
(5)If payment for long service leave is made to a person because the person makes an application under section 56(1) or a corresponding law that corresponds to section 56(1), the person must not be credited in the register of workers with any day’s service for building and construction work performed by the person during the period of long service leave.
Section 110 of the IR Act sets out the circumstances in which an employee may be paid for an entitlement to long service leave instead of taking the leave, and is in the following terms:
110 Payment instead of taking 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.
(5)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.
(6)In this section—
employee includes a registered worker under each of the following Acts—
(a)the Building and Construction Industry (Portable Long Service Leave) Act 1991;
(b)the Community Services Industry (Portable Long Service Leave) Act 2020;
(c)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—
(a)the Building and Construction Industry (Portable Long Service Leave) Act 1991;
(b)the Community Services Industry (Portable Long Service Leave) Act 2020;
(c)the Contract Cleaning Industry (Portable Long Service Leave) Act 2005.
Relevantly, by operation of s 110(6) of the IR Act, the entitlement to long service leave under the BCI Act is taken to be an entitlement to long service leave for the purpose of
s 110 of the IR Act.Prior to considering whether I may make an order pursuant to s 110(4) of the IR Act, I must be satisfied that the Applicant has an entitlement to long service leave.
Relevantly, the information provided by QLeave indicates that Mr Prasad does not have an entitlement to long service leave. As noted by QLeave, in order to have such an entitlement, Mr Prasad would have needed to have accrued a total of 2200 service credits. Unfortunately, Mr Prasad has only accrued 864 service credits. Consequently, I conclude that Mr Prasad does not have an entitlement to long service leave within the meaning of s 110 of the IR Act.
Mr Prasad’s agent raises matters with respect to a 'leaving the industry claim' and the crediting of one year's service. I am not in a position to make a determination with respect to this as it is not a matter that falls within the jurisdiction of the Queensland Industrial Relations Commission to determine. It is a matter, however, that I would expect the parties to discuss further given that it has been raised during the course of this application.
For the foregoing reasons, the application is dismissed.
Order
The application is dismissed.
0
0
0