Re: Fagg

[2021] QIRC 323

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Re: Fagg [2021] QIRC 323

PARTIES:

Fagg, Andrew Michael
(Applicant)

CASE NO:

EC/2021/46

PROCEEDING:

Application for payment instead of taking long service leave

DELIVERED ON:

17 September 2021

HEARING DATE: 

On the papers

MEMBER:

Dwyer IC

HEARD AT:

Brisbane

ORDER:

1.   The application is dismissed.

CATCHWORDS:

LEGISLATION:

INDUSTRIAL LAW - QUEENSLAND - application for payment instead of taking long service leave - no jurisdiction

Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) s 4, s 39D, s 39E, s 39EA, pt 5A

Fair Work Act 2009 (Cth)

Industrial Relations Act 2016 (Qld) s 12, s 13, s 110, ch 2 div 9

Reasons for Decision

Background

1. Mr Andrew Michael Fagg filed a Form 13 - Application for payment instead of taking long service leave on 29 January 2021. Following the filing of the application, a directions order was issued which required a statement from Mr Fagg's employer to identify, amongst other things, his present entitlement to long service leave ('LSL') and the Industrial Instruments which applied to the applicant.

2. On 4 February 2021, Mr Fagg's employer provided a statement including his present entitlement. Relevantly it identified the Industrial Instrument which applied as the "Coal Mining Industry (Long Service Leave Funding) Corporation".

3. On 5 February 2021, correspondence was received from Ms Darlene Perks, Chief Executive Officer, Coal Mining Industry (Long Service Leave Funding) Corporation ('the Corporation'). Curiously, the correspondence was dated 28 November 2018. In summary it noted that:

   ·The Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) ('Administration Act') governs Coal LSL and the minimum long service leave entitlements for eligible employees;

   ·A number of coal mining industry eligible employees had made applications to the Queensland Industrial Relations Commission ('the Commission') for payment of their LSL per s 110 of the Industrial Relations Act 2016 (Qld) ('the IR Act'); and

   ·Sections 39E and 39EA of the Administration Act excludes the application of the National Employment Standards and State and Territory laws which deal with LSL, for eligible employees.

1. A mention was held on 15 February 2021 to address the jurisdictional issue. The Corporation representative confirmed that there was no scheme comparable to s 110 of the IR Act allowing an employee governed by the Administration Act to make an application for payment of their LSL.

2. The matter was adjourned for two weeks to allow Mr Fagg time to receive legal advice and talk to a representative from the Corporation, to determine whether the application might be resolved in another manner.

3. On 21 February 2021, correspondence from Mr Fagg was received requesting that the Commission continue with the proceedings and make a judgment.

4. Following a mention held on 22 March 2021, a directions order was issued requiring the parties to file submissions in response to the jurisdictional objection.

   Submissions of the parties

5. The Corporation contends, for reasons set out in their written submissions filed on 19 April 2021, that the Commission does not have the jurisdiction to make the order for payment of LSL sought by Mr Fagg. In summary it submits that:

   ·Part 5A of the Administration Act contains the circumstances in which an entitlement to LSL is enlivened. No provision in the Administration Act permits payment from the Coal Mining Industry (Long Service Leave) Fund ('the Fund') by the Corporation of the type which Mr Fagg is seeking;

   ·If a dispute arises regarding payment from the Fund, s 39D vests jurisdiction in the Fair Work Commission to deal with the dispute;

   ·Section 12(1)(b) of the IR Act states that the IR Act only applies to the extent that the Fair Work Act 2009 (Cth) does not apply;

   ·Part 5A of the Administration Act, dealing with the entitlement to LSL, operates to the exclusion of a State or Territory law;[1] and

·An application pursuant to s 110 of the IR Act is not available to eligible employees seeking payment from the Fund. Section 13 of the IR Act directly relates to the LSL provisions contained in chapter 2, part 3, division 9 and does not grant powers to the Commission to make an order related to the Fund.

[1] Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) s 39EA.

1. Mr Fagg contends, for reasons set out in his written submissions filed on 17 May 2021, that he should have access to his LSL through the Commission. In summary, he submits that:

   ·The Corporation is in place for its contributors and the employees;

   ·According to Coal LSL's submissions, the Administration Act is able to supersede and prevent state legislation from operating which regulates LSL in Queensland;

   ·Citing the Industrial Relations Act 1999 (Qld), Mr Fagg outlines that as he is not covered by an award or agreement and he has complied with the legislative requirements by making an application to the Commission on the basis of compassionate and financial hardship grounds, he is entitled to his LSL;

   ·The Corporation makes no consideration of casual employees in the Administration Act and their ability to secure their LSL; and

   ·The Corporation cannot determine whether or not the Commission can make the order he seeks and are discriminating against casual employees by refusing access to LSL.

   Consideration

2. Part 5A of the Administration Act contains a comprehensive regime for establishing inter alia the entitlement to, and payment of, LSL for eligible employees.

3. Mr Fagg is an eligible employee within the meaning of s 4 of the Administration Act. Chapter 2, Division 9 of the IR Act is a State law dealing with LSL within the meaning of the Administration Act.

4. Part 5A, Division 5, s 39EA of the Administration Act provides:

   This Part applies in relation to eligible employees and their employers to the exclusion of a State or Territory law that deals with long service leave.  

1. Mr Fagg's application pursuant to s 110 of the IR Act is misconceived. While his circumstances of 'entitlement' and 'financial hardship' appear to be clearly established by the documents attached to his application, the operation of the Administration Act excludes him from any consideration for payment of LSL under the scheme established by the IR Act.

2. In the circumstances the Commission does not have jurisdiction to consider his application and it must be dismissed.  

   Order

3. In the circumstances I make the following order:

   1.   The application is dismissed.