Criminale & Ors v State Authorities Superannuation Board

The applicants, six employees of the United Dental Hospital of Sydney, sought special leave to appeal to the High Court of Australia against a decision of the Court of Appeal. The dispute concerned the applicants' entitlement to participate in a superannuation scheme constituted by the *Superannuation Act 1916* (NSW) between the commencement of their employment in the mid-20th century and their eventual admission to the scheme in 1980.

The central legal issue before the High Court was the interpretation of the exclusionary words within the definition of "employee" in section 3(1) of the *Superannuation Act 1916*. Specifically, the Court had to determine whether the phrase "does not include... a person who is paid at hourly, daily, weekly, or fortnightly rates, or by piece-work" operated to exclude individuals whose contracts of employment stipulated such payment methods, even if their employment was otherwise intended to be permanent.

The Court of Appeal had interpreted these exclusionary words as excluding persons whose contracts of employment provided for hourly, daily, weekly, or fortnightly rates of pay. The applicants contended that this interpretation had significant repercussions, potentially affecting approximately 100 other employees of the hospital and, more broadly, any other persons employed in the public sector, by allowing public sector employers to exclude individuals from superannuation benefits through the simple expedient of stipulating a weekly rate of pay. The applicants sought to argue for a contrary interpretation of these exclusionary words.