The Queensland Industrial Relations Commission has confirmed that an employee can make a long service leave claim in Queensland, even if they have worked in the State for only 18 days.
The decision in Fox v Infosys Technologies Ltd [2024] QIRC 109 has considered ‘continuous service’ to include past service performed outside of Queensland, meaning an employee can be entitled to long service leave for a short period of work performed within the State.
Background
Mr Gade was employed by Infosys Technologies Ltd (Infosys), a company incorporated in India but registered as a foreign company in Australia. While employed with Infosys, Mr Gade completed six years of his employment in India before he was transferred to Melbourne and completed another four years with the company.
During Mr Gade’s term of employment in Melbourne, he requested to perform a period of employment in Brisbane. Infosys agreed to Mr Gade’s assignment to Brisbane, however, while still in Melbourne, Mr Gade gave notice of his resignation. Following Mr Gade’s resignation, he performed the remainder of his notice period in Brisbane.
After his employment terminated, an industrial inspector made a claim on Mr Gade’s behalf seeking payment of his long service leave entitlement as he had attained 10 years of continuous service with Infosys 23 days before he commenced work in Brisbane.
Queensland Framework: what is continuous employment?
Given Australia’s complex employment laws, each state governs the entitlement to long service leave differently. In Queensland, section 95(2)(a) of the Industrial Relations Act 2016 (QLD) (IR Act) provides the entitlement to long service leave after an employee has completed 10 years of continuous service. Under the IR Act, continuous service is defined under section 93(b) as “the employee’s continuous service with the same employer, whether wholly in the State or partly in and partly outside the State”.
Decision
Infosys claimed that the Commission should apply the ‘substantial connection’ test (which has been applied in Victoria and New South Wales) and dismiss Mr Gade’s claim on the basis that there was no substantial connection between his service and Queensland. However, the Commission found that the substantial connection test does not apply in the context of the Queensland framework as the IR Act references service that was “partly in” Queensland as sufficient grounds to give rise to an employee’s entitlement to access long service leave.
An interesting facet of this case is that there was evidence that the employee was entitled to a payment similar in character to long service leave under Indian law. While initially, the Industrial Inspector proposed that the long service leave payment would be reduced by the amount paid under Indian law, the Commission found that there was no legal basis to justify such a reduction and determined that Mr Gade was entitled to his full long service leave entitlement under Australian law.
Implications for Employers
The Infosys decision highlights how an employee who is engaged with a company registered in Australia can be eligible for long service leave for service performed “wholly” or “partly in” the State of Queensland. As determined in Infosys, the IR Act provisions are given their literal meaning and employees will be able to claim long service upon completing 10 years of continuous service where a period of their employment is performed in Queensland. If an employee’s continuous service is entirely outside of Queensland, they cannot receive this entitlement under the Queensland framework.
This decision underscores the risks for companies assigning employees to Queensland, even for short periods. Employers should assess and monitor the continuous service of each employee, especially those engaged or likely to be engaged in Queensland when they are close to the 10-year threshold. As demonstrated, the substantial connection test is not a relevant consideration when assessing long service leave in the context of the IR Act and an employee can satisfy continuous service, even where the service was for a short period of their employment.
