Van Eden v Bunnings Group Limited

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Van Eden v Bunnings Group Limited [2025] QIRC 223
PARTIES:	Van Eden, Sophia (Applicant) v Bunnings Group Limited (Respondent)
CASE NO:	EC/2025/626
PROCEEDING:	Application for payment instead of taking long service leave
DELIVERED ON:	25 August 2025
HEARING DATE:	On the papers
MEMBER: HEARD AT:	O'Neill IC Brisbane
ORDERS:	The orders contained in paragraph [32] of these reasons for decision.
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND – application for payment instead of taking long service leave – payment made by employer by consent prior to order of the Commission – whether payment made without lawful authority.
LEGISLATION: CASES:	Industrial Relations Act 2016 (Qld) s 110 Kartelo v Sciaccas Lawyers Pty Ltd [2019] QIRC 055 Mastop v Kmart Australia Ltd [2024] QIRC 052 Lapham v State of Queensland (Department of Child Safety, Seniors and Disability Service) [2025] QIRC 41

Reasons for Decision

Introduction

Ms Sophia Van Eden has been continuously employed by Bunnings Group Limited ('the Employer') since July 2015.
On 12 August 2025, Ms Van Eden filed an application pursuant to s 110 of the Industrial Relations Act 2016 (Qld) ('the IR Act') for payment instead of taking long service leave ('LSL').
Section 110 of the IR Act relevantly provides that an employee may be paid for all or part of an entitlement to long service leave if the payment is ordered by the Commission where the Commission is satisfied the payment should be made on compassionate or financial hardship grounds.
Ms Van Eden satisfies the requirement in s 95(2) of the IR Act that she has ten years continuous service.
In the application, Ms Van Eden sought a part payment of 152 hours of her accrued LSL entitlements. This was calculated as a gross sum of $5,334.65.
Ms Van Eden provided a statement within her application which established that the payment was sought was on the basis of financial hardship and/or compassionate grounds. Supplementary documentation was attached to the Application to support the statement and provide evidentiary material. It is not necessary for the purposes of this decision to go into the grounds raised by Ms Van Eden, other than to observe that the information provided establishes a valid basis for the payment of LSL to be made pursuant to s 110(4) of the IR Act.
On 12 August 2025, the Commission issued a Directions Order to the Employer in the usual form seeking the Employer to complete an "Employer Statement" and provide the additional information set out in the Directions Order. This was to be supplied to the Commission by 18 August 2025.
On Wednesday, 13 August 2025, the Brisbane City Council area was subject to the Exhibition ('Ekka') Public Holiday, meaning that the Commission was closed.
On 13 August 2025 the Employer sent email correspondence to the Commission stating, "We have received the signed document from Sophia and we will be processing the LSL payout to be banked tonight".
On 14 August 2025, multiple emails were sent from my Chambers to the Employer advising them to not make any payments to the Applicant until an Order was made by the Commission.
On the same day, the Employer confirmed that payment had already been made to the Applicant on the evening of 13 August 2025.
The matter was then called on for mention before me on 21 August 2025. Following that mention a further Directions Order was made requiring the Employer to file either an affidavit or Statutory Declaration explaining the circumstances surrounding the payment of LSL to Ms Van Eden. This evidence was to be filed by 4:00 pm on Thursday, 28 August 2025.
The difficulty with what has occurred is that a payment of LSL in lieu of taking LSL to an employee pursuant to s110 of the IR Act can only occur lawfully by order of the Commission.

Legislation

Section 110 of the IR Act provides:
110      Payment Instead of 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.
Section 541 of the IR Act provides:
541 Decisions generally
The court or commission may, in an industrial cause do any of the following –
(a) make a decision it considers just, and include provision for preventing or settling the industrial dispute or dealing with the industrial matter to which the cause relates, without being restricted to any specific relief claimed by the parties to the cause;…

Section 9 of the IR Act provides:
9 What is an industrial matter
(1)     An "industrial matter" is a matter that affects or relates to -
(a)        work done or to be done; or
(b)       the privileges, rights or functions of -
(i)      employers or employees; or…
(Emphasis added)
Consideration
In Kartelo v Sciaccas Lawyers[1], Industrial Commissioner Knight observed when discussing s 53 of the repealed 1999 IR Act:

[81] In my view, the purpose of the qualifications at s 53 of the superseded Act, which are expressed in clear and emphatic terms, is to ensure that the cashing out of long service leave, while no longer totally prohibited, remains meaningfully fettered. Only if the employee makes an application to the Commission, and only if the Commission is satisfied the payment should be made on compassionate or financial hardship grounds, may the payment be ordered; in other words, only those "tales which demand compassion" of which the Full Bench remarked will merit an order for payment.[2]

[1] [2019] QIRC 055.

[2] Ibid, [81] per Knight IC.

In the absence of there being an order from the Commission authorising the partial payment of LSL to Ms Van Eden, the payment that has been made by the Employer is unlawful.
Further, any LSL payment made in the absence of an order from the Commission pursuant to s 110 of the IR Act will not discharge the employer's LSL liability and may constitute an overpayment to the employee. This was confirmed in a decision of Industrial Commissioner Dwyer in Mastop v Kmart Australia Ltd ('Mastop'). [3]

[3] [2024] QIRC 052.
In Mastop, a similar situation arose where the employer, Kmart Australia Ltd, made a LSL payment to Mr Mastop without an order having been made by the Commission. In addressing this issue, Industrial Commissioner Dwyer relevantly observed:

[14] LSL is a statutory entitlement that cannot be compromised by mutual agreement except as prescribed by the IR Act. Further, in circumstances where s 110(2) of the IR Act does not apply, payment instead of LSL can only occur legitimately by order of the Commission. Any LSL payment made contrary to the provisions of s 110 of the IR Act will prima facie not discharge the employer's LSL liability and might constitute an overpayment to the employee.
[15] Having regard to the provisions of the General Retail Industry Award 2020 it is clear that s 110(2) of the IR Act has no application. In those circumstances any payment made by Kmart to Mr Mastop purporting to be instead of LSL has not discharged or reduced Kmart's LSL liability to Mr Mastop as at July 2023. Additionally, any payment made to Mr Mastop in August 2023 purporting to be instead of LSL is, in these circumstances, technically an overpayment which he is liable to repay. Plainly, given the express intention of the parties to the contrary, this situation is unsatisfactory.
[16] Applications of this nature are rarely controversial. When all parties comply with directions of the Commission, the granting of such orders is both a simple and routine function of the Commission.
[17] For reasons set out above this matter has become complicated by the parties disregarding the directions issued on 4 July 2023 and simply entering into what amounts to a private arrangement for the payment of LSL instead of taking it. No criticism is made of either party. Their actions were well intentioned albeit they did not conform with the direction or the IR Act. But their actions have placed each of them in jeopardy of further dispute in respect of LSL.[4]
[4] Mastop v Kmart Australia Ltd [2024] QIRC 052, [14]-[17].
Following the series of emails referred to in paragraphs [9] to [11] above, on 19 August 2025, the Employer filed in the Industrial Registry an "Employer Statement" in belated compliance with the Directions Order issued by the Commission on 12 August 2025.
In the Employer Statement the Employer confirmed that Ms Van Eden commenced continuous employment on 1 July 2025 (and as a consequence satisfied the requirement in s 95(2)(a) of the IR Act of having completed 10 years continuous service). The Employer further confirmed the monetary value of the LSL applied for by Ms Van Eden.
On 25 August 2025, the Employer filed in the Industrial Registry a Statutory Declaration of Ms Emma Lenz dated 25 August 2025. In the Statutory Declaration Ms Lenz declares as follows:
·The history of email communication between the Employer and the Industrial Registry was noted and confirmed. Ms Lenz confirmed that upon receiving the email communication from the Industrial Registry on 14 August 2025 that payment was not to be made until there was an order from the Commission, Ms Monique Goold, Payroll Processing Manager emailed the Industrial Registry on 14 August 2025.

·In the email from Ms Goold it was the Employer's understanding that as Bunnings had received the application form from the Industrial Registry, and as the Employer did not object to the application, the signed Form 13 was the catalyst for the approval to make the LSL payment to Ms Van Eden. They payment was made on 13 August 2025. Ms Lenz attached a copy of the email from Ms Goold dated 14 August 2025 as Annexure 'A' to her Statutory Declaration.

·The Employer is satisfied of Ms Van Eden's eligibility to receive the LSL payment, and had filed the Employer Statement in the Industrial Registry confirming this. A copy of the Employer Statement was attached as Annexure 'B' to the Statutory Declaration.
It is clear from both the Employer Statement and the Statutory Declaration provided by Ms Lenz that there is no dispute between the parties that Ms Van Eden has satisfied the requirements of s 110 of the IR Act, and that the Employer does not object to the payment of LSL, and has in fact already paid the monetary equivalent of the LSL to Ms Van Eden.
In the Mastop decision, Commissioner Dwyer adopted the following pragmatic approach to regularise the payment made by Kmart to Mr Mastop (citations omitted):
[19] There are a number of ways in which the parties error could be remedied but the least burdensome is for the Commission to make orders that have the effect of characterising the payment made by Kmart in August 2023 as being a payment made in accordance with an order of the Commission pursuant to s 110 of the IR Act.
[20] Given that such an order is required to be retrospective, it would seem to be appropriate circumstances for the use of the powers available to the Commission pursuant to s 541(1) of the IR Act. The Commission is satisfied that Mr Mastop's application is an 'industrial cause' as contemplated by s 541 of the IR Act.[5]
[5] Ibid, [19]-[20] per Dwyer IC.
I adopted and followed that approach in a recent decision of Lapham v State of Queensland (Department of Child Safety, Seniors and Disability Service)[6], where the same scenario of an unauthorised payment of LSL occurred.

[6] [2025] QIRC 041, at [27]-[32].
In my view there is no reason why the same approach should not be adopted in the present case to regularise the payment made to Ms Van Eden.
I am satisfied that Ms Van Eden's application is an 'industrial cause' as contemplated by s 541 of the IR Act.[7]

[7] See Sch.5 and s 9 of the IR Act.
I am further satisfied on the basis of the information contained in Ms Van Eden's Form 13 - Application filed 12 August 2025, the Employer Statement filed 19 August 2025 and the Statutory Declaration of Ms Lenz filed in the Industrial Registry on 25 August 2025, that Ms Van Eden ought to have payment of her LSL.
Noting that Ms Van Eden has already received payment of an amount of $3,970.65 (after taxation) from the Employer in satisfaction of her request, the Commission intends to make orders granting Ms Van Eden's application, but which simultaneously recognise the payment made by the Employer on Wednesday 13 August 2025 discharges the Employer's LSL obligations to Ms Van Eden by the amount paid.
For the avoidance of any doubt, I note that the intent of the orders that follow is to give effect to the payment made by the Employer to Ms Van Eden on 13 August 2025 as if that payment was made in response to an Order of the Commission pursuant to s 110 of the IR Act, and that no further amount is required to be paid by the Employer to Ms Van Eden in response to her application filed on 12 August 2025.
Orders
In the circumstances it is Ordered that:

1. The application is granted.
2. Bunnings Group Limited must pay the Applicant the amount of $3,970.65 within 21 days of the date from which this order takes effect.

3. Pursuant to s 541 of the Industrial Relations Act 2016 (Qld) this order will take effect from 12 August 2025.

[2025] QIRC 223

25 August 2025