Extract from Queensland Government Industrial Gazette s8

[Extract from Queensland Government Industrial Gazette, dated 23 October, 2009, Vol. 192, No. 8, pages 134-135]

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Industrial Relations Act 1999 - s. 53 - payment instead of long service leave

Stephen Anthony O'Shea (EC/2009/73)

VICE PRESIDENT LINNANE 8 October 2009

DECISION

[1] This is an application by Stephen Anthony O'Shea seeking an order under s. 53(4) of the Industrial Relations Act 1999 (the Act) for a payout of his entitlement to long service leave on compassionate grounds. Section 53 of the Act relevantly provides as follows:

"53 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 if subsection (2) or (3) applies.

(2) If the relevant industrial instrument provides for the employee to be paid for all or part of an entitlement to long service leave instead of taking the leave or part of the leave, payment may be made, in accordance with the industrial instrument, if the employee and employer agree by a signed agreement.

(3) If no industrial instrument provides for the employee to be paid for 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 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.".

[2] The term "industrial instrument" is defined in Schedule 5 of the Act to mean "an award, certified agreement, QWA, industrial agreement, EFA, code of practice under section 400I or order under chapter 5, parts 5 and 6".

[3] Mr O'Shea is currently employed pursuant to the Queensland Rail Limited Traincrew Union Collective Workplace Agreement 2009 (the Agreement). The Agreement was certified by the Australian Industrial Relations Commission on 21 July 2009. I was not provided with a copy of the Agreement however Queensland Rail did provide a copy of clause 25.7 of the Agreement which provides as follows:

"Cashing out long service leave

Employees with 7 or more years of service may apply to cash out a portion of their accrued long service leave under the following conditions:

 The application will be in writing.  Employees must have at least 9.1 weeks of long service leave remaining after they have cashed out a portion of their long service leave.  Employees may make such an application at a time/s each year designated by the Company or in conjunction with taking a period of long service leave.

In considering the employee's application, the Company will take into account the potential impact on the employee in terms of workplace health and safety.

The cashed out long service leave forms part of the employee's taxable income for the year, therefore, the Company will deduct the relevant amount for taxation purposes.

Employees who cash out long service leave will have that amount of leave deducted from their balance.".

[4] Mr O'Shea has made an application to Queensland Rail but apparently did not meet the requirements of clause 25.7 of the Agreement so the application was refused. 2

[5] There is no "industrial instrument" providing for Mr O'Shea to be paid all or part of his entitlement to long service leave as provided for in s. 53(3) of the Act as the Agreement is not "an award, certified agreement, QWA, industrial agreement, EFA, code of practice under section 400I or order under chapter 5, parts 5 and 6" within the meaning of those terms in the Act. However, the Agreement made by the Australian Industrial Relations Commission provides for the cashing out of long service leave. In those circumstances the Agreement would appear to cover the field as far as the cashing out of long service leave and s. 109 of the Commonwealth of Australia Constitution Act would prevent the use of s. 53(4) of the Act from being used to grant Mr O'Shea's application.

[6] Had Mr O'Shea not been employed pursuant to the Agreement of the Australian Industrial Relations Commission, I would have been prepared to make an order under s. 53(4) of the Act for some of Mr O'Shea's entitlement to long service leave to be paid out for the purposes outlined in his application.

D.M. LINNANE, Vice President. Appearances: Mr S. O'Shea representing himself. Hearing Details: 2009 15 and 29 September Released: 8 October 2009

Government Printer, Queensland The State of Queensland 2009.