INDUSTRIAL LAW – QUEENSLAND – GENERAL EMPLOYMENT CONDITIONS
– LONG SERVICE LEAVE – ENTITLEMENT TO LEAVE –
CONTINUITY OF
SERVICE – where the employee was employed by the respondent in India
Source
Original judgment source is linked above.
Catchwords
INDUSTRIAL LAW – QUEENSLAND – GENERAL EMPLOYMENT CONDITIONS– LONG SERVICE LEAVE – ENTITLEMENT TO LEAVE –CONTINUITY OFSERVICE – where the employee was employed by the respondent in India– where a condition of the terms ofemployment was that the employee couldbe deployed to locations outside India – where the employee was deployedto Victoria– where, after ten years of continuous service with therespondent, the employee was deployed to work in Queensland –where theemployee worked in Queensland for 18 days – where the employee made claimfor long service leave pursuant to theprovisions of the Industrial RelationsAct 2016 – whether long service leave entitlements only arise if theservice of the employee has a “substantial connection”to the State– whether the Industrial Court erred in its legal construction of“continuous service” in s 93 of the Industrial Relations Act2016 – whether the Industrial Court was correct to conclude that an
entitlement to long service leave arises if the employee has
performed ten years
continuous service with the respondent before working in Queensland
Industrial Relations Act 2016 (Qld), s 93, s 94,
s 95, s 130, s 554
Payment of Gratuity Act 1972
(Ind)
Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd
Minister for Immigration, Citizenship and Multicultural Affairs v
Su (2024) 303 FCR 342
[2024] FCAFC 68, applied
Judgment (61 paragraphs)
[1]
[1] BOND JA:Section 95(2) of the Industrial Relations Act 2016 (Qld) (the Act) relevantly provides that an employee is entitled to a period of long service leave at full pay if the employee has completed 10 years continuous service with the same employer. Section 95(3) confers an entitlement to a proportionate payment for the long service leave entitlement on termination of the employee's service if the employee has completed at least 7 years continuous service.
[2] The appellant is a company incorporated under the laws of India and a registered foreign company under the Corporations Act 2001 (Cth). The appellant had employed a particular employee for a continuous period totalling 10 years, one month and 10 days consisting of:
[2]
(a) six years, three months and 10 days in Mysore, India;
(b) three years, nine months and 13 days in Melbourne, Victoria; and
(c) eighteen days in Brisbane, Queensland.
[3]
[3] The respondent was an industrial inspector and filed an application on behalf of the employee for proportionate payment of long service leave for unpaid wages representing the employee's alleged long service leave entitlement. The application was referred for determination to the Full Bench of the Queensland Industrial Relations Commission pursuant to s 486 of the Industrial Relations Act 2016.
[4] The question on which the entitlement turned was whether the employee's continuous service with the appellant was to be regarded as "continuous service ... partly in and partly outside the State" and therefore falling within the definition of continuous service set out in s 93 of the Act. The Full Bench answered that question in favour of the respondent, relevantly ordering:
[4]
"[The employee] performed ten years continuous service with the [appellant] partly in and partly outside the State of Queensland and is entitled to long service leave."
[5]
[5] Pursuant to s 554 of the Act, an appeal lies as of right from a decision of the Full Bench constituted by the President and 2 or more other members, on the grounds of error of law or excess or want of jurisdiction, and with leave on other grounds.
[6] By the present appeal the appellant seeks to overturn the decision of the Full Bench on the following grounds:
[6]
"1. The Commission erred in its legal construction of 'continuous service' in section 93 of [the Act].
[7]
In order to qualify as continuous service of 10 years 'partly in ... the State' of Queensland, the part of the service 'in ... the State' must amount to a substantial proportion of the total continuous service.
18 days service out of 10 years (or 3,653 days) continuous service is a proportion of 0.49%. That proportion does not constitute service 'partly in ... the State'.
[8]
The Commission should have found that the employee the subject of the application before the Commission, [the employee], had not completed 10 years continuous service 'partly ... in the State', within section 93(b) of [the Act], and therefore did not qualify for long service leave under section 95 of [the Act]."
[9]
(a) the appeal be allowed;
(b) the decision below be set aside and in lieu thereof a new order substituted namely that the application be dismissed; and
(c) the respondent pay its costs of the appeal.
[10]
[8] For reasons which follow, the appeal should be dismissed with costs.
[11]
[9] The appellant is a company which specialises in information technology solutions. It has a global presence in 247 locations across 54 countries. It has a large workforce based in India and from time to time, it deploys members of that workforce on engagements to various international locations, including to Australia. It refers to those overseas engagements as "deputations," and to its employees deployed on deputation as "deputees".
[10] When the need arises for a deputation overseas, the appellant seeks out interest from its Indian workforce, or identifies members of that workforce suitable for the deputation and then the appellant and the employee enter into a "deputation agreement." Such an agreement is a contract of employment of a temporary nature for the period of the deputation and is to be read with the Indian employment contract. Deputations are temporary and deputees are contractually obliged to return to India at the conclusion of their deputation.
[11] The employee commenced employment with the appellant on 5 March 2012, having signed on that date the terms of an engagement letter dated 10 December 2011. His engagement letter specified that the location of his initial reporting and training would be Mysore, India and that he would be told of the location of his posting upon successful completion of training. The conditions of his employment included that his services could be transferred to any of the appellant's units/departments situated anywhere in India or abroad and, at such time, the compensation applicable to a specific location would be payable to him.
[12] From 5 March 2012 to 14 June 2018, the employee worked for the appellant in Mysore, India.
[13] Pursuant to a deputation agreement dated 13 June 2018, the appellant engaged the employee to perform a deputation to the appellant's office in Melbourne, Victoria. Amongst other terms the deputation agreement provided:
[12]
"We are happy to inform your deputation to the [appellant's] office in Melbourne (AU), Victoria, Australia."
[13]
"Your deputation will be for a period of about 13 months commencing from 14-Jun-2018. The exact duration, however will depend on specific requirements of the project. This deputation is temporary in nature and you shall return to your home country post completion of your deputation. Your base location continues to be in India.
[14]
During the course of your Deputation, you shall be required to work at the Australian Branch or at any of the Company's customer sites or in any other location as per the business requirements in Australia in connection with the execution of any contractual obligation that the Company may have undertaken."
[15]
"The Company reserves the right to terminate this Deputation at any time with 2 weeks' notice, at its own sole discretion or on the termination of the period of the Deputation mentioned herein. Upon termination of this Deputation, the terms of this Letter will cease to apply and the terms of your original Employment Contract with the Company will regain full effect. ...You are required to return to your Home Country immediately after your deputation or intimation of the date of termination of your deputation."
[16]
(d) By cl 20:
"We expect you to contribute your best towards the success of your deputation...You are required to observe the local laws...
You are required to return to your home country immediately following the completion of your deputation in Australia.
You agree that, during the term of your deputation with the Company at your work location, it will be your responsibility to give complete and accurate information with regards to any change in your original location of deputation to the Company, failing which you shall provide the Company with authorization to deduct any additional/excess/erroneous payments made to you during your deputation...
The terms and conditions of the deputation are subject to applicable local laws and hence may be altered or modified in order to facilitate compliance with the same.
The terms and conditions of your deputation continue to be governed by the terms and conditions of your offer of employment except to the extent modified herein."
[17]
[14] By an assignment letter dated 27 July 2020, the appellant notified the employee that his new assignment was with Telstra and that his assignment location was Melbourne. The letter stated that his assignment would be for a period of about 6 months commencing from 25 July 2020 and that his revised assignment end date was 31 December 2020. By letter dated 15 December 2020, the appellant advised the employee of a new assignment, still with Telstra, with an assignment location still in Melbourne.
[15] Accordingly, pursuant to the deputation agreement and the assignment letters dated 27 July 2020 and 15 December 2020, from 15 June 2018 to 13 March 2022, the employee worked for the appellant on assignment with the appellant's client Telstra at an office in Melbourne.
[16] Whilst in Melbourne, the employee requested a transfer to Telstra's Brisbane premises. The request was entered into the Infosys system on 8 March 2022. The appellant agreed to his request.
[17] Pursuant to the appellant's assignment letter dated 9 March 2022, the appellant was engaged to work with Telstra in their office in Brisbane. Amongst other things, the assignment letter advised:
[18]
"Your assignment location is ... Brisbane (AU), Queensland.
[19]
We have ensured that the immigration authorities have been notified of the change in your Assignment, as required by the regulations."
[20]
Your Assignment will be for a period of about 4 months commencing from 14-Mar-2022. Your revised Assignment end date is 30-Jun-2022. The exact duration, however, will depend on the specific requirements of the project and/or on the discretion of the Company.
[21]
Please note that, your on-site tenure including this Assignment cannot exceed the duration specified in your immigration document or 18 months whichever is lower.
[22]
[The appellant] reserves the right to call for your return to your base location at any point during your Assignment."
[23]
"The changes in your assignment do not warrant a change in allowance / salary.
[24]
Any further change in role and/or location or visa extension may lead to change in compensation. Such changes will be communicated to you."
[25]
"... You are required to ensure that your assignment details are always up-do-date with the accurate information regarding your location, role, client or duration; failure to do so could result in disciplinary action as deemed appropriate up to and including termination of employment.
[26]
The terms and conditions of the assignment are subject to applicable laws and hence may be altered or modified without notice in order to facilitate compliance with the same.
[27]
The terms and conditions of your assignment continue to be governed by the terms and conditions of your offer of employment / deputation / secondment / latest assignment letter, except to the extent modified herein. You acknowledge that any temporary benefits made available while on assignment may be modified at the discretion of the Company and applicable law."
[28]
[18] Although the employee's assignment to Brisbane was to commence on 14 March 2022, his travel to Brisbane was delayed due to health issues.
[19] On 16 March 2022, whilst he was still based in Victoria, the employee resigned from his employment. His reporting manager validated that resignation on 23 March 2022. He served out his contractual notice period with the appellant in the following manner:
[29]
(a) Until 27 March 2022, he continued to work for the appellant in Melbourne.
(b) From 28 March 2022 to 14 April 2022, he worked from the Telstra offices in Brisbane. His day-to-day work continued to be in relation to work performed for Telstra in Melbourne.
(c) His final date of employment with the appellant was 14 April 2022.
[30]
[20] The employee's total period of continuous service with the appellant was 10 years, 1 month and 10 days, comprising:
[31]
(a) 6 years, 3 months and 10 days in India (62.09% of the total);
(b) 3 years, 9 months and 13 days in Melbourne (37.42% of the total); and
(c) 18 days in Brisbane, Queensland (0.49% of the total).
[32]
[21] On the employee's employment ending, he was provided a gratuity payment of ₹104,885.00 (which equated to $1,868.52 AUD) pursuant to the Payment of Gratuity Act 1972 (Ind), which is an Act which confers on Indian nationals a payment on termination of employment that is intended to reward an employee for their service. That payment is required to account for the total period of service with the employer (and in the employee's situation, was measured to include his service performed in both Melbourne and Brisbane).
[22] The employee later made an inquiry to the Office of Industrial Relations about whether he should also be paid a long service leave entitlement under the Act. That inquiry caused the respondent to apply to the Queensland Industrial Relations Commission in the way previously mentioned.
[33]
[23] Chapter 2 of the Act is entitled "Modern employment conditions". Part 3 of chapter 2 is entitled "Queensland Employment Standards." The part provides for minimum standards of employment that apply to employees and which cannot be displaced except under chapter 2. The various divisions of Part 3 encompass particular subject matters for regulation. The division presently of interest is division 9 which contains a scheme for working out the rights and entitlement of certain employees to long service leave under the Act.
[24] The provision which specifies the entitlement of employees to long service leave is s 95. That section provides:
[34]
"95 Entitlement - employees other than seasonal employees
[35]
(2) The employee is entitled to long service leave, on full pay, of -
[36]
(a) if the employee has completed 10 years continuous service - 8.6667 weeks; and
(b) after 10 years service, if the employee has completed at least a further 5 years continuous service - a period that bears to 8.6667 weeks the proportion that the employee's further period of continuous service bears to 10 years.
[37]
(3) An employee who has completed at least 7 years continuous service is entitled to a proportionate payment for long service leave on the termination of the employee's service.
[38]
proportionate payment means a payment equal to the employee's full pay for a period that represents the same proportion of 8.6667 weeks that the employee's period of continuous service bears to 10 years."
[39]
[25] "Continuous service" is relevantly defined in s 93 as "the employee's continuous service with the same employer, whether wholly in the State or partly in and partly outside the State".
[26] Section 94 of the Act provides that part 4 of chapter 2 of the Act applies "for working out an employee's rights and entitlements to long service leave" under division 9. The provisions of part 4 are significant because they affect the calculation of the period of an employee's continuous service with the same employer, which is the critical consideration for the calculation of an employee's entitlement to long service leave pursuant to s 95. For present purposes, the relevant aspect of part 4 is that in the calculation of the period of "continuous service", the term "service" includes "employment": see s 130.
[40]
[27] The grounds of appeal have been quoted at [6] above. Before this Court the respondent advanced an argument that, upon analysis, the appellant's complaint formulated in ground 1, particular B was as to an error of fact and not an error of law. The appellant's response that its argument that the Full Bench had misconstrued s 93(b) of the Act was an appeal on the ground of error of law.
[28] Recently, in the Full Court of the Federal Court of Australia considered the ambit of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) which conferred a right of appeal to the Federal Court "on a question of law".[2] The Court observed:
[41]
"Following the decision of the High Court in Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd[2020] HCA 2; (2020) 270 CLR 494 (esp at [41]-[45]), the following principles are relevant:
[42]
(1) Whether the words used in a statute bear their ordinary meaning is a question of law: Collector of Customs v Agfa-Gevaert Ltd[1996] HCA 36; (1996) 186 CLR 389 at 397.
[43]
(2) The question of whether the facts fully found fall within the provision of a statute properly construed will very frequently be exclusively a question of law: Hope v Bathurst City Council[1980] HCA 16; (1980) 144 CLR 1 (Hope) at 7-8; Vetter v Lake Macquarie City Council(2001) 202 CLR 439 (Vetter) at [24]-[25].
[44]
(3) Special considerations apply where a statute, on examination, is found to use words according to their common understanding and the question is whether the facts as found fall within those words. In such cases, the question raised is whether the conclusion drawn by the tribunal/decision-maker was unreasonable: Hope at 7; Vetter at [25]-[26]. If different conclusions are reasonably open, the determination of which is correct is a question of fact: Vetter at [26].
[45]
(4) A question exclusively of law arises if on the facts only one conclusion is open: Vetter at [27]; Hope at 9.
[46]
These principles were encapsulated by the High Court in Pharm-A-Care in a single sentence (at [41]):
[47]
Within the bounds of reasonableness, the application or non-application of the common understanding of an expression used in a statute to facts that have been found is itself a question of fact.
[48]
A finding of fact can be erroneous in law if the finding is reached through the application of a wrong legal test: Pharm-A-Care at [44]. This may occur if the decision-maker has not applied the well understood ordinary meaning of a term but has given to it a meaning or qualification of his or her own: Sharp Corporation of Australia Pty Ltd v Collector of Customs(1995) 59 FCR 6 (Sharp Corporation) at 12. Sharp Corporation was cited with approval by the High Court in Pharm-A-Care."
[49]
[29] In the present case, the facts were agreed. There can be only one correct conclusion on the question whether on those facts, the employee had a right to long service leave under the Act. In my view if the conclusion which the Full Bench reached was arrived at through the application of the wrong legal test, the conclusion would be regarded as founded on an error of law, and this Court would have jurisdiction to consider the argument and to reach the right result through the application of the correct legal test.
"As Allsop J said in Collins[2007] FCAFC 111; 163 FCR 35 at [55], a question of law 'directing the Court's attention to the manner in which the Tribunal failed to discharge its obligations according to law' is a 'legitimate subject of an "appeal"' under s 44(1) of the AAT Act and nothing in the cases 'limits the reach of s 44 to questions of law divorced from the need to look at facts'."
[51]
[31] Accordingly, it seems to me that the real question on the present appeal is whether the Full Bench applied the wrong legal test to the analysis of whether the employee's continuous service with the appellant was to be regarded as "continuous service ... partly in and partly outside the State" and therefore falling within the definition of continuous service set out in s 93. I turn now to consider that question.
[52]
[32] The Full Bench rejected the appellant's argument that in order to qualify as continuous service of 10 years "partly in ... the State" of Queensland, the part of the service "in . . . the State" must amount to a substantial proportion of the total continuous service. Rather their Honours' approach is encapsulated in their Honours' reasons at [74] to [76]:
[53]
"It might be that in some cases an employee's presence in Queensland is so fleeting that it might not be able to be said that there was any 'service in the State'. It is a matter of fact to be determined whether in any particular case, the presence of the employee in the performance of any work by the employee constitutes 'service ... partly within the State.'
[54]
In order to determine whether there has been 'service ... partly in the State' it is necessary to look at all the circumstances including the contract of service. The terms of employment of an employee are not exclusively defined by the contract of service in that terms and conditions may be incorporated by statute or industrial instruments. However, subject to those exceptions, the contract of employment will define the relationship.
[55]
While [the employee's] employment contract was entered into in India, the terms of employment expressly provided that he may be required to serve the respondent in other jurisdictions. He was required to serve the respondent both in Victoria and in Queensland. The fact that he may have requested deployment to Queensland is beside the point. The respondent chose to send him to Queensland for the purpose of his employment. He worked in Queensland for some 18 days as part of his 'service' which was 'partly in the State'." (emphasis in original, footnotes omitted)
[56]
[33] Later, when dealing with an argument which suggested that the law conferring the entitlement might be constitutionally invalid on the grounds of lack of real connection with Queensland (an argument not advanced before this Court), the Full Bench observed at [97]:
[57]
"Section 93(b) operates with s 95 so as to bestow benefits upon workers who perform work within the geographical boundaries of Queensland. The fact that the entitlement may also depend upon things which have occurred outside Queensland does not render the law one that does not have a 'real connection' with Queensland. As was concluded in Mears v Vector Aerospace Australia Pty Ltd, s 93(a) is within the power of the Queensland parliament to make. There is no need to read it down."
[58]
[34] The appellant argues that in order to qualify as continuous service of 10 years "partly in ... the State" of Queensland, the part of the service "in . . . the State" must amount to a substantial proportion of the total continuous service. To accept that argument would be to engraft onto the text of the statute a conception which is not warranted by the text. On the other hand, the test which seems to have been applied by the Full Bench seems to have been driven by the question whether the contract of employment required the performance of work within Queensland. That too would be wrong.
[35] The entitlement to long service leave turns on whether the employee has "completed 10 years continuous service". The past tense of the verb "complete" is here used in the sense of having brought to an end or finished. Having regard to the definitions of "continuous service" in s 93 and "service" in s 130, what is required is that the employee has finished 10 years continuous employment with the same employer "partly in and partly outside the State". This seems to me to ask a broader question than simply whether the employee has performed work in Queensland for any quantifiable period of time as part of his employment. Rather, it requires consideration of whether it can be said at any particular time that the employee's "service" - that is the employee's "employment" - was geographically located in Queensland? The answer to that question requires an evaluation of all the circumstances including of the terms and conditions contained in or made applicable to the employee's contract of service, with a view to characterizing the location of the employee's employment under the contract of service. A conclusion that an employee's continuous service has been partly in Queensland is not warranted merely because the employee has been required to perform some work within the geographical boundaries of Queensland.
[36] I would evaluate the relevant circumstances in the following way.
[37] The terms of the employee's initial engagement with the appellant contemplated his services could be transferred to any of the appellant's units or departments situated anywhere in India or abroad. Such a transfer occurred when in June 2018 the employee received a deputation to the appellant's office in Melbourne.
[38] Under the terms of the June 2018 deputation agreement, although the employee's "base location" continued to be in India, the employee was required for the period of the deputation to work at the appellant's Melbourne office. That the contract both specified a "base location" and also required the employee to be physically located for a period of time at some other place could not by itself dictate an answer to the question. Pursuant to the deputation agreement and the assignment letters dated 27 July 2020 and 15 December 2020, from 15 June 2018 to 13 March 2022, the employee worked for the appellant on assignment with the appellant's client Telstra at an office in Melbourne.
[59]
[42] The appeal should be dismissed with costs.
[43] BROWN JA: I agree with the reasons and the order of Justice Bond.
[44] CROW J: I agree with the reasons of Bond JA.
[60]
[1] The facts recorded under this heading derive from a statement of agreed facts tendered before the Full Bench.
[39] It follows that in every real sense, for that period and despite the contractual statement of "base location", his service was in Melbourne, not India, albeit that his service was subject to the possibility that he might be required to work at any of the Company's customer sites or in any other location as per the business requirements in Australia, or even to return to India. During that period, even if he had been required to perform some work whilst physically in Queensland, it could not have been concluded that his employment was partly in Queensland. The location of his employment was Melbourne.
[40] That position changed consequent upon the appellant having issued the assignment letter of 9 March 2022. The statement of agreed facts records that pursuant to that letter the employee was engaged to work in Brisbane. I would infer the employee must have accepted the assignment letter as issued and thereby altered the terms of his contract of employment. Once that occurred, it became part of the employee's contract of employment that his assignment location was changed from Melbourne to Brisbane. Even though he resigned from his employment before moving to Brisbane, the contract was not immediately terminated. It is difficult to reach any other conclusion than that the period in which he was physically in Brisbane working out his notice period, was nevertheless work performed under the contract of employment altered by the assignment letter. The result is that for at least that period of time his "service" (or "employment") with the appellant was located in Queensland.
[41] Accordingly, I conclude that the order made by the Full Bench was correct, although I arrive at that outcome by a different route.