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Tasmanian Industrial Commission

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T13436

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.21 referral of long service leave dispute
pursuant to the Long Service Leave (State Employees) Act 1994


A Referral by The Secretary, Department of Justice
for and on behalf of Colette Frances McAlpine

(T13436 of 2009)

and

The Secretary, Department of Education


COMMISSIONER T J ABEY

HOBART, 25 June 2009


Long service leave dispute - part-time employment - unpaid leave - applicable salary - order issued


REASONS FOR DECISION


[1] On 1 May 2009, pursuant to s.21(2) of the Long Service Leave (State Employees) Act 1994, the Secretary, Department of Justice referred a dispute on behalf of Colette Frances McAlpine to the Commission for a hearing and determination.

[2] The matter was listed for hearing on 19 June 2009. Appearances: Mr G Williams for the Secretary, Department of Justice (Workplace Standards Tasmania); Mr M Johnston, of The Community and Public Sector Union (State Public Services Federation Tasmania) Inc., for and with Mrs C F McAlpine; and Mr M Watson and Ms D Crespan for the Secretary, Department of Education.

Background

[3] Mrs McAlpine is employed as a teacher with the Department of Education. She commenced employment on 1 January 1974 on a full-time basis.

[4] Since 1 January 2007 Mrs McAlpine has been employed on a part-time (0.6) basis.

[5] In 2008 Mrs McAlpine applied for long service leave (LSL) for the period 16 June to 27 June. The application specifically sought paid leave for six days, which is the equivalent number of days she would have worked had she not been on leave.

[6] In the Record of Complaint dated 17 October 2008, Mrs McAlpine states:

“I applied for 2 weeks off work, as 6 days long service leave as I work 0.6 or 3 days a week.

When I returned I noticed I had been overpaid (2 extra days). I rang to notify the employer who said I had had to take 8 days LSL and two days LSL without pay.

I explained their error pointing out that as I did not work those days anyway I did not need leave for them. I mentioned that I was not paid sick leave on days when I was ill and not scheduled to work.

The person to whom I spoke in HR explained that leave was open to interpretation but that this is the way that the department interpreted the Act.

I feel this interpretation is a huge disadvantage to part-time employees. It is particularly inequitable to those in the process of phased-in retirement.

I request you investigate the Department’s unreasonable, inequitable, simply unfair stance.”

[7] Subsequent discussions between Workplace Standards Tasmania (WST) and the Department failed to resolve the dispute.

[8] Accordingly the matter was referred to the Commission.

[9] The matter proceeded by way of a conciliation conference. At the conclusion of the conference all parties acknowledged that all relevant information was before the Commission and were content for the Commission to issue a decision in relation to the matter.

The Legislation

[10] The relevant statute is the Long Service Leave (State Employees) Act 1994.

[11] Sections of the Act which are relevant to this application are as follows:

“8. Granting of long service leave

(2) An employee may request the relevant prescribed authority to accept an application for long service leave less than one month before the date on which the leave is proposed to commence if exceptional circumstances exist.

(3) On receipt of an application, the relevant prescribed authority may –

(a) grant an employee any long service leave to which the employee is entitled; or

(b) grant an employee only part of any such long service leave; or

(c) refuse to grant any such long service leave.

12. Calculation of long service leave entitlement

(1) At the end of each year of continuous employment, an employee is entitled to be credited with a period of long service leave as follows:

(a) a period of 6.5 days in each year if the employee has been a full-time employee for the whole of that year;

(b) a period of days calculated in accordance with the formula prescribed in subsection (3) if the employee has been a part-time employee at any time during that year.

(3) For the purposes of subsections (1)(b) and (2)(b), the following formula is prescribed:

E = A x 6.5
     B

where –

"E" is the number of days to which the employee is entitled in respect of the period of continuous employment completed by that employee; and

"A" is the total number of hours worked by the employee in that period; and

"B" is the total number of hours that the employee would have been required to work in a year if the employee had been a full-time employee in the position held by that employee.


17. Unpaid leave for part-time employees

(1) A part-time employee is entitled to a period of unpaid leave in addition to paid long service leave calculated under section 12(3).

(2) Any period of unpaid leave may be subject to prescribed conditions.

(3) Any period of unpaid leave in excess of 20 days is not to be taken into account in calculating the employee's entitlement to any sick leave, recreation leave, long service leave or other prescribed leave.

(4) Any period of unpaid leave together with any long service leave calculated under section 12(3) is not to exceed any period of long service leave to which the employee would have been entitled had the employee been a full-time employee.

18. Salary payable during long service leave

An employee who is granted a period of long service leave is entitled to a salary which would be payable had the employee not taken long service leave during that period.”

 

The Employer’s Position

[12] Ms Crespan submitted that the Department’s administrative practice was one of longstanding. In essence the entitlement for paid leave is calculated each year in accordance with the formula found in s.12(3). The entitlement accrued is deducted from 6.5 days (entitlement for a full-time employee), and recorded as an entitlement to unpaid leave.

[13] At the time of taking leave Mrs McAlpine had an entitlement of 24.58 days paid LSL. However, on the basis of the above formula, her accrued unpaid leave was only 2.42 days, due to the relatively short period of time as a part-time employee.

[14] In the circumstances the Department concluded that leave could not be granted in the manner requested. To enable approval to be given, the Department provided Mrs McAlpine leave in the following manner:

• 6 days paid leave (for the days she would have been at work)

• 2 days paid leave (for 2 of the days she was not employed to work)

• 2 days unpaid leave (for the other 2 days she was not employed to work).

[15] Support for this approach appears to be found in a WST publication The Who, What and How of Long Service Leave for State Employees dated 1 September 1995. Similar advice is found in correspondence from the Industrial Relations Division of DIRVET (as it then was), dated 17/01/1996.

Findings

[16] From the outset I indicate that no criticism whatsoever is directed at the Department. At all times the Department has acted on advice and has demonstrated a willingness to comply with the proper application of the Act, whatever that may be. The approach followed as a consequence of this advice is arguably open under s.17 of the Act in particular. The approach works perfectly well for an employee engaged on a regular part-time basis for the entirety of his/her employment with the Crown. It does however potentially give rise to unusual and in my view undesirable outcomes for employees who change from full-time to part-time employment.

[17] For the following reasons it should not, in my view, be the preferred approach.

[18] Sections 12(1) and (3) refer only to an entitlement to paid leave. In the case of part-time employees, the accrued entitlement is pro–rata to that which would be accrued by a full-time employee (6.5 days).

[19] Section 17 is an unusual provision. On the one hand it specifies that a part-time employee is entitled to a period of unpaid leave in addition to paid leave calculated under s.12(3). It does not however specify the rate at which unpaid leave accrues.

[20] Section 17(4) provides that the combination of paid and unpaid leave is not to exceed any period of LSL an employee would be entitled to had they been a full-time employee.

[21] In my view the intent of s.17 is to guarantee the right of a part-time employee to be physically absent for the same period (but not more than) the employee would be entitled to if they were a full-time employee. In the instant case, it means that Mrs McAlpine was entitled to be absent for 10 “school” days, but not more than 10.

[22] Section 17 does raise the rather curious question of why an employee need apply for leave for hours they are not contracted to work. For example, a part-time employee who is sick on a day they are not rostered to work would have no claim for personal leave. It also begs the question of what would happen if the employee was denied the right not to work on days for which they are not contracted.

[23] Indeed it is not immediately obvious to me as to why there is a need to record the accumulation of unpaid leave at all.

[24] Section 18 is quite explicit. It states that an employee on LSL is entitled “to a salary which would be payable had the employee not taken LSL during that period”.

[25] In the case of Mrs McAlpine, this can only be read as meaning the salary equivalent for six days.

[26] This provision is consistent with industrial regulation for other forms of leave such as annual or personal leave.

[27] Whilst it is arguable that there is some tension or inconsistency between s.18 and other sections of the Act, the maxim of the specific prevailing over the general must apply.

[28] The following order has application to Mrs McAlpine alone. Whilst this decision may provide some guidance as to the future, it should not be viewed as having any retrospective implications.


ORDER

Pursuant to s.20 of the Long Service Leave (State Employees) Act 1994, I hereby order that, on the repayment by Mrs McAlpine of two days’ salary calculated at the rate applicable as at the time of taking leave, the accrual of paid long service leave applicable to Mrs McAlpine be re-credited accordingly.

 


Tim Abey
COMMISSIONER
 
Appearances:
Mr G Williams for The Secretary, Department of Justice
Mr M Johnston, of The Community and Public Sector Union (State Public Services Federation Tasmania) Inc., for and with Mrs C F McAlpine
Mr M Watson and Ms D Crespan for The Secretary, Department of Education

Date and Place of Hearing:
2009
June 19
Hobart