Programmed Integrated Workforce Ltd v Fox - [2024] QCA 30

SUPREME COURT OF QUEENSLAND

CITATION:

Programmed Integrated Workforce Ltd v Fox [2024] QCA 30

PARTIES:

PROGRAMMED INTEGRATED WORKFORCE LTD
ABN 29 085 701 962
(appellant)
v
CRAIG GEOFFREY FOX
(respondent)

FILE NO/S:

Appeal No 15927 of 2022
ICQ No 15 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Industrial Court of Queensland at Brisbane – [2022] ICQ 32 (Davis J, President)

DELIVERED ON:

8 March 2024

DELIVERED AT:

Brisbane

HEARING DATE:

30 August 2023

JUDGES:

Bond and Flanagan JJA and Cooper J

ORDERS:

1.   The appeal is allowed.

2.   The decision of the Industrial Court of Queensland is set aside and a new decision is substituted, namely –

(a)     The appeal to that court is allowed; and

(b)     The decision of the Queensland Industrial Relations Commission is set aside, and a new decision is substituted, namely, a decision that the application for a proportionate payment for long service leave is dismissed.

3.      The respondent must pay the appellant’s costs of the appeal.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – CONTINUITY OF EMPLOYMENT – GENERAL EMPLOYMENT CONDITIONS – LONG SERVICE LEAVE – CONTINUITY OF SERVICE AND EMPLOYMENT – where the appellant entered into a labour hire contract to provide temporary administration and trades labour hire services to Brisbane City Council – where the appellant had been engaged in the calling of providing temporary administration and trades labour hire services to the Council – where the Council engaged a new company to provide the same services to it with the result that the appellant ceased providing those services and the new company started providing those services – where the new company became engaged in the calling of providing temporary administration and trades labour hire services to the Council – where the appellant’s casual employee had completed at least 7 years continuous service with the appellant being on-hired to and assigned to perform work for the purposes of the appellant’s labour hire contract with Council – where the appellant terminated the casual employee’s contract of employment – where the casual employee was employed by the new company to do the same work and started doing so immediately after ceasing work with the appellant –– whether the casual employee was entitled as against the appellant to proportionate payment for long service leave pursuant to s 95 of the Industrial Relations Act 2016 – whether there had been a “transfer of calling” from the appellant to the new company within the meaning of s 132 of the Industrial Relations Act 2016 – whether the appellant had dismissed the casual employee for a reason other than the employee’s conduct

Industrial Relations Act 2016 (Qld), s 93, s 95, s 102, s 103, s 132, Sch 5

Australian Liquor, Hospitality and Miscellaneous Workers Union, Qld, Union of Employees v Wilsons Parking Australia 1992 Pty Ltd (2002) 171 QGIG 323; [2002] ICQ 49, cited
Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194; [2005] HCA 9,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Programmed Integrated Workforce Ltd v Fox

Details

AGLC: Programmed Integrated Workforce Ltd v Fox [2024] QCA 30
Case: [2024] QCA 30
Decision Date: 8 March 2024

CaseChat Overview and Summary

Programmed Integrated Workforce Ltd appealed against a decision of the Industrial Court of Queensland which found that they were liable to pay long service leave to a former employee. The Court had to determine whether the employee was entitled to long service leave under the Industrial Relations Act 2016, whether there was a transfer of calling from Programmed to the new company, and whether the employee was dismissed for a reason other than their conduct. The Industrial Court found that the employee was entitled to long service leave and that there had been a transfer of calling, which entitled the employee to long service leave. Programmed argued that the Court had erred in its decision.

The Court held that the employee was not entitled to long service leave as there had not been a transfer of calling from Programmed to the new company. The calling of the new company was different from Programmed as it did not include the provision of temporary administration and trades labour hire services to the Brisbane City Council. The Court further held that the employee was dismissed for a reason other than their conduct as the reason for dismissal was the termination of Programmed’s contract with the Council.

The appeal was allowed, and the decision of the Industrial Court was set aside and substituted with a decision that the application for a proportionate payment for long service leave is dismissed. The respondent was ordered to pay the appellant’s costs of the appeal. This decision highlights the importance of the continuity of employment and calling in determining entitlement to long service leave.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision of the Industrial Court of Queensland is set aside and a new decision is substituted, namely –

(a) The appeal to that court is allowed; and

(b) The decision of the Queensland Industrial Relations Commission is set aside, and a new decision is substituted, namely, a decision that the application for a proportionate payment for long service leave is dismissed.

3. The respondent must pay the appellant’s costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Programmed Integrated Workforce Ltd v Fox [2024] QCA 30
PARTIES:	PROGRAMMED INTEGRATED WORKFORCE LTD ABN 29 085 701 962 (appellant) v CRAIG GEOFFREY FOX (respondent)
FILE NO/S:	Appeal No 15927 of 2022 ICQ No 15 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Industrial Court of Queensland at Brisbane – [2022] ICQ 32 (Davis J, President)
DELIVERED ON:	8 March 2024
DELIVERED AT:	Brisbane
HEARING DATE:	30 August 2023
JUDGES:	Bond and Flanagan JJA and Cooper J
ORDERS:	1. The appeal is allowed. 2. The decision of the Industrial Court of Queensland is set aside and a new decision is substituted, namely – (a) The appeal to that court is allowed; and (b) The decision of the Queensland Industrial Relations Commission is set aside, and a new decision is substituted, namely, a decision that the application for a proportionate payment for long service leave is dismissed. 3. The respondent must pay the appellant’s costs of the appeal.
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND – CONTINUITY OF EMPLOYMENT – GENERAL EMPLOYMENT CONDITIONS – LONG SERVICE LEAVE – CONTINUITY OF SERVICE AND EMPLOYMENT – where the appellant entered into a labour hire contract to provide temporary administration and trades labour hire services to Brisbane City Council – where the appellant had been engaged in the calling of providing temporary administration and trades labour hire services to the Council – where the Council engaged a new company to provide the same services to it with the result that the appellant ceased providing those services and the new company started providing those services – where the new company became engaged in the calling of providing temporary administration and trades labour hire services to the Council – where the appellant’s casual employee had completed at least 7 years continuous service with the appellant being on-hired to and assigned to perform work for the purposes of the appellant’s labour hire contract with Council – where the appellant terminated the casual employee’s contract of employment – where the casual employee was employed by the new company to do the same work and started doing so immediately after ceasing work with the appellant –– whether the casual employee was entitled as against the appellant to proportionate payment for long service leave pursuant to s 95 of the Industrial Relations Act 2016 – whether there had been a “transfer of calling” from the appellant to the new company within the meaning of s 132 of the Industrial Relations Act 2016 – whether the appellant had dismissed the casual employee for a reason other than the employee’s conduct Industrial Relations Act 2016 (Qld), s 93, s 95, s 102, s 103, s 132, Sch 5 Australian Liquor, Hospitality and Miscellaneous Workers Union, Qld, Union of Employees v Wilsons Parking Australia 1992 Pty Ltd (2002) 171 QGIG 323; [2002] ICQ 49, cited Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194; [2005] HCA 9,…