Sato v Maurice Alexander Management Pty Ltd - [2020] QIRC 213

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Sato v Maurice Alexander Management Pty Ltd [2020] QIRC 213
PARTIES:	Sato, Kaori (Applicant) v Maurice Alexander Management Pty Ltd (Respondent)
CASE NO:	B/2020/6
PROCEEDING:	Application for payment of long service leave
DELIVERED ON:	8 December 2020
MEMBER: HEARD AT:	Industrial Commissioner Dwyer On the papers
ORDER:	1. The application for payment of Long Service Leave is granted. 2. The respondent must pay Ms Kaori Sato the amount of $8253.55 (less applicable taxation) within 14 days of the date of this Order.
CATCHWORDS:	INDUSTRIAL LAW – Whether applicant has an entitlement to long service leave – when does entitlement to long service leave arise – certified agreement purporting to oust statutory entitlement to long service leave - effect of certified agreement on service – effect of certified agreement on entitlement – can loading paid on hourly rate be set off against entitlement – designation of loading for long service leave – was loading properly attributable to long service leave - discretion to refuse claim – application allowed.
LEGISLATION: CASES:	Industrial Relations Act 1999 (Qld), s 43 Industrial Relations Act 2016 (Qld), s 95, s 475 Workplace Relations Act 1996 (Cth) Fair Work Act 2009 (Cth), s 113A AMWU v Berri Pty Ltd [2017] FWCFB 3005 Compass Group (Australia) Pty Ltd v Bartram [2007] FCAFC 26 Livermore v Coles Supermarkets Pty Ltd [2019] QIRC 165 Queensland Independent Education Union of Employees v Beerwah & District Kindergarten Association Inc [2008] ICQ 18 Williams v Macmahon Mining Services Pty [2009] FMCA 511; (2009) 231 FLR 59 Williams v Macmahon Mining Services Pty Ltd (No.2) [2009] FMCA 763 Williams v MacMahon Mining Services Pty Ltd [2010] FCA 1321 Workpac v Rossato [2020] FCAFC 84

Reasons for Decision

Background

Ms Kaori Sato makes application for an order that she be paid long service leave ('LSL'). Her claim was previously couched in terms of the entitlement arising under the Industrial Relations Act 2016 (Qld) ('the current IR Act'), however it appears uncontroversial between the parties that any entitlement she has will have arisen under the (now repealed) Industrial Relations Act 1999 (Qld) ('the IR Act').
The parties to these proceedings filed agreed facts on 8 June 2020.
Ms Sato was employed continuously by Maurice Alexander Management Pty Ltd ('MAM') as a casual Flight Attendant between 27 March 2006 until 24 September 2016, a total of ten and a half years.
Ms Sato's total actual hours of service with MAM were 14,893.58hrs.

During her employment Ms Sato's conditions were regulated by inter alia:
· The Flight Attendants' Association of Australia Domestic/Regional Division Casual Flight Attendants Enterprise Agreement 2006 ('the 2006 agreement');
· The Flight Attendants' Association of Australia Domestic/Regional Division Casual Flight Attendants Enterprise Agreement 2010 ('the 2010 agreement'); and

· The Flight Attendants' Association of Australia Domestic/Regional Division Casual Flight Attendants Enterprise Agreement 2015 ('the 2015 agreement').

On or about 7 November 2019, some three years following the cessation of her…

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.

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Details

Case: [2020] QIRC 213
Decision Date: 8 December 2020

CaseChat Overview and Summary

The case of Sato v Maurice Alexander Management Pty Ltd involved the applicant, Ms Sato, seeking a declaration of entitlement to long service leave (LSL) and its payment from her former employer, Maurice Alexander Management Pty Ltd. The dispute was heard and determined by the Federal Circuit and Family Court of Australia. The crux of the matter was whether Ms Sato had an entitlement to LSL under the applicable industrial instruments and if so, the quantum of that entitlement.

The legal issues before the court included the validity of a certified agreement that purportedly affected Ms Sato's entitlement to LSL, the point at which her entitlement crystallised, and the calculation of her LSL. Additionally, the court had to determine if any loading paid on her hourly rate could be offset against her LSL entitlement. The certified agreement's effect on Ms Sato's service and entitlement was critically examined, as was the question of whether the loading was properly attributable to LSL.

The court found that the 2006 agreement, which was in effect until replaced in 2010, did not oust Ms Sato's statutory entitlement to LSL. The court held that Ms Sato's entitlement to LSL arose upon her completion of 10 years of continuous service, which was confirmed to be in March 2016. The court rejected the employer's argument regarding the calculations of the LSL entitlement, accepting the figures submitted by Ms Sato. Consequently, the court allowed the application for payment of LSL.

In conclusion, the court granted Ms Sato's application for the payment of LSL and ordered Maurice Alexander Management Pty Ltd to pay her $8253.55 (less applicable taxation) within 14 days of the date of the order. The court's decision was grounded on the uncontroverted evidence and submissions that Ms Sato's LSL entitlement was valid and that the calculations provided were accurate.

Orders

Orders of the court

1. The application for payment of Long Service Leave is granted.

2. The respondent must pay Ms Kaori Sato the amount of $8253.55 (less applicable taxation) within 14 days of the date of this Order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Apart from the submissions challenging its effect on LSL entitlements, no challenge has been made by Ms Sato to the proposition that the 2006 agreement was validly operating in relation to her employment until its replacement in October 2010. In the circumstances I do not consider it necessary to consider the issue further. Conclusion For all of the foregoing reasons I am satisfied that Ms Sato had an entitlement to LSL upon her completion of 10 years continuous service with MAM. It is uncontroversial that Ms Sato's entitlement crystallised in March 2016. Further, MAM makes no challenge to the calculations of the entitlement contained in Ms Sato's application and in her submissions and as such I accept those calculations.

Ratio Decidendi

Legal Principle Established

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