Last month, the Full Bench of the Queensland Industrial Relations Commission handed down its judgment in Fox v Infosys Technologies Ltd [2024] QIRC 109 (Fox). What transpires is an interesting outcome relating to the interpretation of ‘continuous service’ for the purpose of eligibility for long service leave under the Industrial Relations Act 2016 (Qld) (IR Act). The decision in Fox clarifies that employees who have performed 10 years’ continuous service with their employer ‘wholly in Queensland or partly in and partly outside Queensland’ are entitled to long service leave in Queensland. Curiously in Fox, the employee had only worked in Queensland for 18 days, which is a far cry from the 10 years of continuous service required under the IR Act to be eligible for long service leave. So how did we get here?
What happened in Fox v Infosys?
An industrial inspector from the Office of Industrial Relations in Queensland brought an unpaid wages claim against Infosys Technologies Ltd (Infosys) on behalf of ex-employee, Mr Narendra Gade. Infosys is an Indian company which provides IT solutions and operates from 247 locations across 54 countries, including Australia. Mr Gade is an Indian national who worked firstly in India before he was deployed to Australia where he first worked in Melbourne and then in Brisbane.
Mr Gade reached his 10-year anniversary with Infosys on 5 March 2022, a couple of weeks before he began working in Queensland. He resigned from Infosys while in Melbourne, with his notice of resignation expiring while he worked in Brisbane from 28 March 2022 to 14 April 2022.
The Full Bench found that Mr Gade was entitled to long service leave despite only having worked in Queensland for 18 days because, on the proper construction of the IR Act, employees need only work their 10 years of continuous service ‘partly in and partly outside the State’. This interpretation has a retrospective operation, with an employee’s service across national and international jurisdictions adding up to the required 10 years of continuous service.
Even more curiously, the Full Bench found that Mr Gade’s entitlement to long service leave in Queensland could not be offset by his similar entitlements under Indian law. In effect, Mr Gade was able to ‘double dip’ his long service leave entitlements in both India and Queensland.
In reaching this outcome, the Full Bench distinguished long service leave entitlements in the IR Act from Victoria’s and New South Wales’s long service leave laws, which require a ‘substantial connection’ between an employee’s continuous service and the State in which they seek to claim long service leave. You can read our article here on decisions about those States’ long service leave laws.
Key takeaways
To claim long service leave in Queensland, an employee must reach 10 years of continuous service ‘wholly in the State or partly in and partly outside the State’. There is no ‘substantial connection’ test to tie the employee’s service to Queensland, and employment across jurisdictions counts towards an employee’s qualifying period of service in the sunshine state. Further, employers should not assume an employee’s long service leave or similar entitlements in another jurisdiction can be set off against long service leave entitlements under the IR Act – some employees may be able to ‘double-dip’ long service leave entitlements.
For employers with operations across jurisdictions, this might be a relevant consideration when deploying employees to Queensland.
We will sign off with an observation from the Full Bench which might provide limited relief: ‘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 remains to be seen how widespread the impacts of the decision in Fox will be.
For any help with understanding these recent changes and your obligations, please contact a member of our expert team.