Many members will have been following the long-running dispute in Queensland over on-hire firms’ liability to pay long service leave to an on-hire employee when an account changes hands. The case was run on behalf of a worker by the Queensland Office of Industrial Relations, to clarify the position of long-term on-hire employees when labour-hire accounts transition between providers.
In March this year, the full bench of Queensland's Supreme Court ruled that on-hire employees are "transferred" to a new recruitment company if they opt to transition when host employers change their labour hire providers, clarifying that liability for long-service entitlements, for long-term on-hire workers, transfers to the new labour provider.
The dispute related to a casual maintenance worker who was employed by Programmed Integrated Workforce (PIW) and on-hired to Brisbane City Council for a period of eight years, on successive casual contracts. The worker become a Randstad employee after it won a competitive tender in 2019 to service the Council. When the supply contract transitioned to Randstad after a competitive tender, the worker took up the offer to transition but resigned two months later due to ill health. There was no dispute the worker was owed a proportionate LSL entitlement, the issue was which company was liable to pay it.
Initially, the Queensland Industrial Relations Commission found PIW liable for the worker's LSL, proportionate to the time it had employed him, as there was no ‘transfer of calling’. This position was upheld when PIW originally appealed the decision in the Queensland Industrial court in 2022, which found PIW had terminated the worker’s service and he was therefore ‘dismissed’, meaning no transfer had occurred.
In this latest appeal however, the full bench of the Supreme Court of Appeal determined that under section 132 of the Queensland Industrial Relations Act, PIW's ‘calling’ had transferred to Randstad during the account transition. As such, Randstad was deemed liable for the worker's LSL from his tenure with PIW to his departure from Randstad eight years later.
RCSA reminds members of the complexities which accompany supplier contract transitions and entitlements of employees servicing such contracts, and of the intricacies of LSL more broadly. RCSA has a comprehensive checklist which covers all the information needed regarding Long Service Leave entitlements broken down by state across the whole of Australia. It covers basic entitlements, how they are calculated and at what rate of pay, the timeframes, process requirements and all the information you need to meet your compliance requirements or answer your employee's questions:
Long Service Leave Checklist
If members have any questions regarding long service leave or the guidance note, we invite you to connect with our Workforce Information Line (WIL) on 1300 988 685.
If members would like additional information, please don’t hesitate to get in touch with Lily Andrews in RCSA’s advocacy team on +61 448 332 610 or at [email protected]