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1
Industrial Relations and Another Act
Amendment
INDUSTRIAL RELATIONS AND
ANOTHER ACT AMENDMENT BILL 2000
EXPLANATORY NOTES
GENERAL OUTLINE
Section 58(2) of the Industrial Relations Act 1999 required a full bench
of the Queensland Industrial Relations Commission (QIRC) to review the
entitlement to long service leave before 30 June 2000.
On 27 June 2000 the QIRC concluded this review with the release of a
written statement that provided support for the following changes and
improvements to the current entitlement to long service leave:
� 8.6667 weeks leave after 10 years continuous service, with
transitional arrangements to phase in the new entitlement;
� access to a pro-rata payment for long service leave after 7 years
service where the employee terminates because of illness,
incapacity, or domestic or other pressing necessity (or death), but
not where the employee is terminated by the employer for a valid
reason related to their conduct, capacity or performance;
� once 10 years continuous service has been worked, whether or
not a first or subsequent leave has been taken, all service (stated in
years and a fraction of the year if necessary) should be paid for
any termination;
� `cashing out' of leave should be permitted after 10 years
continuous service;
� the formula for payment of long service leave for casual
employees should apply also to part-time employees and
employees with a mix of full-time, part-time and casual
employment during their continuous service; and
� part-time employees should be entitled to take full-time equivalent
long service leave, as is currently the case for casual employees.
2
Industrial Relations and Another Act
Amendment
The Queensland Government decided to legislate to give effect to the
views and conclusions expressed by the QIRC. It has done so on the basis
that the outcome of the review should be implemented in its entirety.
NOTES ON CLAUSES
PART 1--PRELIMINARY
Short Title
Clause 1 sets out the short title of the Bill.
Commencement
Clause 2 provides for the commencement of the Bill on a day to be fixed
by proclamation.
PART 2--AMENDMENT OF INDUSTRIAL
RELATIONS ACT 1999
Act amended in pt 2
Clause 3 provides that this part of the Bill amends the Industrial
Relations Act 1999.
Amendment of s 43 (Entitlement)
Clause 4 provides for the previous long service leave entitlement of 13
weeks leave after 15 years continuous service to be replaced by a new
entitlement of 8.6667 weeks leave after 10 years continuous service.
The clause establishes that an employee is entitled to proportionate
payment for long service leave if the employee's service is terminated after
completing at least 7 years continuous service. However, if the employee's
3
Industrial Relations and Another Act
Amendment
service is terminated after 7 years continuous service but before the
completion of 10 years continuous service, the employee is entitled to a
proportionate payment only if certain prescribed conditions are met. The
clause outlines these conditions as follows:
� The employee's service is terminated because of the employee's
death; or
� The employee terminates the service because of the employee's
illness or incapacity, or because of a domestic or other pressing
necessity; or
� The employer dismisses the employee for a reason other than the
employee's conduct, capacity or performance, or the employer
unfairly dismisses the employee (i.e. an employee who is
dismissed by the employer between 7 and 10 years continuous
service does not have an entitlement to a proportionate payment if
dismissed for reasons of conduct, capacity or performance,
provided it was not an unfair dismissal. In all other circumstances
where an employer dismisses an employee, whether or not it was
an unfair dismissal, the employee will be entitled to a
proportionate payment).
The clause outlines the transitional arrangements to phase in the new
entitlement of 8.6667 weeks after 10 years continuous service. In effect,
these arrangements apply to employees whose continuous service began
before the commencement date. For the purposes of working out when
such an employee may take long service leave, only two thirds of an
employee's continuous service completed before the commencement counts
as continuous service. However, the entitlement to long service leave that an
employee has accrued before the commencement is not reduced.
The clause provides examples of how these transitional arrangements
apply.
Amendment of ch 2, pt 3, div 3, heading
Clause 5 alters the heading to reflect the fact that the division makes
provision for regular part-time employees, in addition to casual employees.
4
Industrial Relations and Another Act
Amendment
Amendment of s 48 (Taking long service leave--alternative provision
for casual employees)
Clause 6 extends to regular part-time employees the capacity to take long
service leave in the form of its full-time equivalent by agreement with their
employer. The definition of `regular part-time employee' is in the dictionary
at Schedule 5.
Amendment of s 49 (Payment for long service leave)
Clause 7 provides that the manner and method of calculation of payment
for long service leave under section 49 applies not only to casual employees
but to any employee who was a casual or regular part-time employee at any
time during the employee's continuous service to which the long service
leave relates.
The formula is adjusted to reflect the new entitlement of 8.6667 weeks
leave after 10 years continuous service.
Amendment of s 50 (Entitlement--employees in sugar industry and
meat works)
Clause 8 adjusts both the formula and the example in section 50(2) to
reflect the new entitlement of 8.6667 weeks leave after 10 years continuous
service.
Replacement of s 53 (Payment instead of long service leave on
termination)
Clause 9 removes the prohibition on payment instead of long service
leave except on termination and provides that if the relevant industrial
instrument provides for this to happen, 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. Payment may be made, in accordance with the industrial
instrument, if the employee and employer agree by a signed agreement.
If no industrial instrument provides for this to happen, payment may be
made only if the payment is ordered by the commission on application by
the employee. The commission may order a payment only if satisfied the
payment should be made on compassionate grounds or on the ground of
financial hardship.
5
Industrial Relations and Another Act
Amendment
The full bench must not make a general ruling under section 287 that
allows an employee to be paid for an entitlement to long service leave
instead of taking the leave.
Amendment of s 58 (Review of general employment conditions)
Clause 10 omits section 58(2) as the full bench has now fulfilled the
requirement placed on it to review the entitlement to long service leave
before 30 June 2000.
PART 3--AMENDMENT OF BUILDING AND
CONSTRUCTION INDUSTRY (PORTABLE LONG
SERVICE LEAVE) ACT 1991
Act amended in pt 2
Clause 11 provides that this part of the Bill amends the Building and
Construction Industry (Portable Long Service Leave) Act 1991.
Amendment of s 56 (Application for entitlement to long service leave
or payment instead of long service leave)
Clause 12 provides for the circumstances in which a worker under the
Building and Construction Industry (Portable Long Service Leave) Act
1991 can be paid for all or part of an entitlement to long service leave
instead of taking the leave or part of the leave. If no building and
construction industry award or agreement provides for this to happen,
payment may be made only if the worker has accrued 10 years service in
the register of workers and the industrial relations commission has ordered
the payment under section 53(3) of the Industrial Relations Act 1999, as
provided for in part 2, clause 9 of the Bill.
� State of Queensland 2000