In the recent decisions of Ferris v Woodlands H.R. Pty Ltd (No.3) [2006] QIRC 075 (PDF, 295KB) and Nas v Kabi Kabi Aboriginal Corporation Pty Ltd [2026] QIRC 052 (PDF, 292KB), the Queensland Industrial Relations Commission (QIRC) found there was no break in an employee’s continuity of service when, on the facts, there was a transfer of the employee’s calling between employers.
In Ferris v Woodlands H.R. Pty Ltd, the QIRC initially rejected the employee’s application for long service leave (LSL). On appeal, President Davis J referred to the decision of the Queensland Court of Appeal in Programmed Integrated Workforce v Craig Geoffrey Fox [2024] QCA 30 (PDF, 249KB),with particular reference to the consideration in obiter that the phrase ‘transfer of calling’ can refer to the calling of an employer or employee
In reaching the decision, President Davis J stated that “the mischief which the provisions are designed to meet is to ensure that LSL entitlements are not lost where, in substance, the employee has been engaged continually in the one business or enterprise. The preservation of continuing of service in circumstances where third parties have, by agreement, disrupted continuity by reorganising the employment of the employee from one entity to another fulfills that legislative purpose”.
The QIRC held that the employee’s calling of farm labouring had been transferred from the employee’s original employer (a chicken farming company) to the labour hire company and then back to the original employer. Therefore, the employee’s continuity of service had not been broken by the employment with the labour hire company, and the final employer was determined to hold the LSL obligation.
In Nas v Kabi Kabi Aboriginal Corporation Pty Ltd the employee was employed by North Coast Aboriginal Corporation for Community Health (NCACCH) and then Kabi Kabi Aboriginal Corporation Pty Ltd (Kabi Kabi) in the calling of administration, funding, community engagement and property management services. During the employee’s employment with NCACCH, the employee spent between one and three days per week working for Kabi Kabi.
At the end of the employee’s employment with NCACCH, the employee entered into a contract of employment with Kabi Kabi that stated accrued leave entitlements (including LSL) would be carried over from NCACCH.
Industrial Commissioner Power held that the contract of employment demonstrated an intention to transfer the employee’s employment entitlements from NCACCH to Kabi Kabi. This was consistent with an assignment of the employee’s calling to Kabi Kabi by agreement.
Therefore, Industrial Commissioner Power held that the employees calling was transferred from NCACCH to Kabi Kabi and that the employee was entitled to LSL.
Employers should contact their employer association and/or seek independent legal advice to determine LSL liabilities.
