David Joseph v Jayne Worthington
[2018] VSCA 102
•23 April 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2017 0097
| DAVID JOSEPH | Applicant |
| v | |
| JAYNE WORTHINGTON & ANOR | Respondents |
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| JUDGES: | TATE, OSBORN and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 March 2018 |
| DATE OF JUDGMENT: | 23 April 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 102 |
| JUDGMENT APPEALED FROM: | [2017] VSC 501 (Derham AsJ) |
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STATUTORY INTERPRETATION – Appeal – Appeal from decision of Associate Judge on question of law – Whether the summary offence created by s 72(2) of the Long Service Leave Act 1992 of failing to pay the full amount of long service leave owing to an employee on the day employment ended is a continuing or complete offence – Plain meaning of text of provision does not create continuing offence – Appeal allowed – Jones v Lorne Saw Mills Pty Ltd [1923] VLR 58; R v Industrial Appeals Court; Ex parte Barelli’s Bakeries Pty Ltd [1965] VR 615; R v Industrial Appeals Court; Ex parte Circle Realty Pty Ltd [1980] VR 459; Sloggett v Adams (1953) 70 WN (NSW) 206.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Mr D Gurvich QC with Mr K McDonald | David Joseph & Co |
| For the First Respondent: | Mr P Hanks QC with Ms R Sharp | Maddocks |
TATE JA:
I have had the benefit of reading the judgment of Osborn JA, in draft. I agree, for the reasons his Honour gives, that leave to appeal should be granted and the appeal allowed.
OSBORN JA:
Introduction
Susan Scorah resigned from her employment with the applicant, David Joseph, on 7 December 2012.
The applicant had acquired the practice of a law firm in which Ms Scorah was employed on 14 April 2008. At that time Ms Scorah had been employed in the practice since September 2002. Accordingly, at the date of her resignation, her total period of employment was approximately 10 years and three months.
Two months after ceasing her employment with the applicant, Ms Scorah wrote to the applicant requesting payment of her long service leave entitlement. The applicant denied liability to pay any amount for long service leave, maintaining (amongst other things) that the entitlement had already been paid.
In March 2014, Ms Scorah complained of the non-payment to the Department of Economic Development, Jobs, Transport and Resources (‘the Department’).
On 20 October 2014, the first respondent Jayne Worthington (‘Worthington’), (who is an officer of the Department) signed a charge sheet and summons directed to the applicant which was issued by the Magistrates’ Court on the following day.
The charge alleged:
On and from 7 December 2012 and continuing, David Joseph, trading as David Joseph & Co Lawyers (ABN 12 247 624 310), being the former employer of Susan Charmaine Scorah, contravened s 72(2) of the Long Service Leave Act 1992 (Vic)
Particulars
You, David Joseph, trading as David Joseph & Co Lawyers, were required on 7 December 2012, to pay Susan Charmaine Scorah, an employee whose employment ended on 7 December 2012, before she had taken all of the long service leave to which she was entitled, the full amount of her long service leave entitlement as at that date and have thereafter failed to do so.
Sections 72(1) and (2) of the Long Service Leave Act 1992 (‘LSLA’) provide:
(1)If the employment of an employee ends before he or she has taken all the long service leave to which he or she is entitled, the employee is to be regarded as having started to take his or her leave on the day the employment ended.
(2)On that day the employee’s employer must pay the employee the full amount of the employee's long service leave entitlement as at that day.
Penalty: 20 penalty units.
The applicant was subsequently convicted of the charge and appealed to the County Court in which the appeal proceeded by way of hearing de novo before his Honour Judge Murphy.
On that hearing the applicant raised the contention that the charge breached s 7 of the Criminal Procedure Act 2009, in that it was issued more than twelve months after the alleged offence occurred.
In answer to this contention, counsel for Worthington submitted that the offence was a continuing offence and that the charge was therefore not barred by the twelve month limitation found in s 7.
Judge Murphy accepted that the offence was a continuing one and found the offence proven. His Honour dismissed the appeal with costs and ordered the applicant to pay:
(a) The outstanding entitlement of Ms Scorah, being $8,405.79 pursuant to s 161 of the LSLA;
(b) Interest on that outstanding entitlement pursuant to s 160(5) of the LSLA;[1]
(c) A fine of $1,500; and
(d) Worthington’s costs fixed at $18,320.
[1]Section 161(3) of the LSLA, which is directed at the payment of arrears on conviction, incorporates the power to award interest under s 160(5), s 160 being directed at the recovery by an employee of money owed.
The applicant then issued judicial review proceedings in the Supreme Court seeking an order in the nature of certiorari quashing the decision of the County Court judge. The applicant further sought a declaration that s 72(2) of the LSLA does not create a continuing offence and is otherwise subject to the provisions of s 7 of the Criminal Procedure Act.
On 29 August 2017, Derham AsJ dismissed that application.[2]
[2]Joseph v Worthington [2017] VSC 501 (‘Reasons’).
The applicant now seeks leave to appeal the decision of Derham AsJ on the ground that his Honour erred in finding that the offence created by s 72(2) of the LSLA is a continuing offence.
For the reasons set out below I would grant leave to appeal and allow the appeal.
In essence, I am of the view that the meaning of the text of the relevant provisions is plain, namely, that the obligation is to pay on that day the employment ended, and that neither its context nor its purpose require it to be given other than its plain meaning.
Principles of statutory construction
Derham AsJ summarised the relevant principles of statutory construction succinctly and accurately by reference to High Court authority.[3] They are encapsulated in the following statements.
[3]Ibid [29]–[31].
In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue, Hayne, Heydon, Crennon and Kiefel JJ emphasised the centrality of the words of the relevant statutory provision:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[4]
[4](2009) 239 CLR 27, 46–47 [47].
In Commissioner of Taxation v Consolidated Media Holdings Ltd, French CJ, Hayne, Crennan, Bell and Gageler JJ said: [5]
‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text.’ So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.
[5](2012) 250 CLR 503, 519 [39] (citation omitted).
In Project Blue Sky Inc v Australian Broadcasting Authority, McHugh, Gummow, Kirby and Hayne JJ emphasised the importance of reading a statute as a whole: [6]
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[6](1998) 194 CLR 355, 381 [69] (citations omitted).
Their Honours also endorsed the subsidiary principle that a court should strive to give meaning to every word of a statutory provision.[7]
[7]Ibid 382 [71].
The relevant statutory provisions
The purpose of the LSLA is to make provision with respect to the long service leave entitlements of certain employees.[8]
[8]Section 1.
Sections 56–58 make incremental provision for entitlements to long service leave. Ms Scorah’s entitlement was governed by s 58 which provides:
58 Entitlement to long service leave if employment stops after 7 years
(1)This section only applies if an employee’s employment is ended and the employee has completed at least 7, but less than 15, years of continuous employment with one employer.
(2)The employee is entitled to an amount of long service leave equal to 1/60th of the period of his or her continuous employment.
The LSLA then relevantly provides for a series of beneficial extended concepts of employer and employment.[9]
[9]Sections 59–63.
It further provides for the time when leave is to be taken and for payment to be made whilst an employee is on leave.[10]
[10]Sections 66–71A.
Section 72 then provides (substantially in terms that I have already set out but which it is convenient to repeat) as follows:
72 What is to happen if employment ends before leave taken
(1)If the employment of an employee ends before he or she has taken all the long service leave to which he or she is entitled, the employee is to be regarded as having started to take his or her leave on the day the employment ended.
(2)On that day the employee’s employer must pay the employee the full amount of the employee's long service leave entitlement as at that day.
Penalty:20 penalty units.
(3)An employee’s long service leave entitlement under this section includes any entitlement that accrued as a result of the ending of the employee's employment.
It should be noted:
(e) That sub-s (1) provides for a deeming provision in respect of the commencement of entitlement;
(f) The employer is required to pay the employee’s entitlement on the day upon which long service leave is deemed to have started;
(g) The plain words of sub-s (2) impose an obligation to pay ‘on that day’;
(h) Subsection (2) creates a specific offence. It does not simply create an obligation which is subsequently reinforced by a general penal provision relating to breach of an employer’s obligations under this part of the Act.
Section 73 provides for long service leave entitlements in circumstances where an employee dies before leave is taken. Subsection (1) provides:
If an employee dies before taking all the long service leave to which he or she is entitled, the employee's employer must pay to the employee’s personal representative the full amount of the long service leave entitlement still owed to the employee (if any).
Penalty: 20 penalty units.
It may be noted that (understandably enough) the obligation to pay to an employee’s representative is not expressed by reference to a particular date.
Nevertheless, once again, the subsection provides for a specific offence.
The provisions of s 75 should also be noted. These provide for the settlement of disputes concerning leave. They enable an employee or the personal representative of an employee to apply to the Industrial Division of the Magistrates’ Court for an order directing an employer to pay to the employee or the representative any amount that has become due to the employee or the representative under this division of the Act within the five years immediately before the day on which the application is made.[11]
[11]Section 75(2).
This provision makes clear (as do subsequent provisions) that the right of an employee to recover a long service leave entitlement is not directly dependent upon the construction of the penal provision contained in s 72(2).
It may also be contrasted with s 72(2) in that it makes specific provision for an extended limitation period with respect to the special type of proceeding in issue. On the other hand, s 72(2) like a number of other summary offence provisions contained within this part of the LSLA is governed by s 7 of the Criminal Procedure Act.
The terms of s 80 relating to the keeping of records should also be noticed.
(1)An employer must keep long service leave records in the form approved by the Chief Administrator and containing the details required by him or her.
Penalty:20 penalty units.
(2)An employer must retain a long service leave record for at least 7 years after the employee to whom the record relates dies or stops working for the employer.
Penalty:20 penalty units
(3)A person must not make any false or misleading statement in, or any material omission from, a long service leave record made under this section.
Penalty: 20 penalty units
(4)It is a defence to a charge under subsection (3) if the person charged proves to the satisfaction of the Court that the statement or omission complained of resulted from a genuine error.
(5)Despite anything to the contrary in this or in any other Act, a charge-sheet charging an offence under this section may be filed at any time within 5 years after the commission of the alleged offence.
In this instance it can be seen that s 80(2) specifically provides for a continuing obligation to keep records over specified periods, breach of which constitutes a summary offence. In turn, s 80(5) specifically creates an extended limitation period with respect to the summary offences created by the section.
Next, s 81 facilitates civil recovery of money due by way of long service leave entitlements. It provides:
Any amount owed under this Division by an employer to an employee or his or her personal representative is to be regarded for the purposes of this Act as arrears of pay.
In turn, s 160 of the LSLA relevantly provides:
(1)An employee who is owed any money by an employer under this Act or any other Act, or under any employment agreement or order made under this Act or any other Act, may take proceedings in the Industrial Division of the Magistrates' Court to recover the money owing. The debt must arise out of the employment relationship.
(2)An organisation may, if requested to do so by an employee who is, or is eligible to become, a member of the organisation, take proceedings in the Industrial Division of the Magistrates’ Court to recover money owed to the employee for long service leave.
(3)Proceedings under this section must be started within 6 years after the employee's entitlement to the money arises.
It follows that Ms Scorah (or potentially a relevant organisation) is still within time to institute civil proceedings for recovery of the long service leave entitlement owed. Once again, the LSLA specifically regulates the relevant limitation period.
Finally, ss 161 confers a power on the Magistrates’ Court to order payment of arrears on conviction. Section 161(1) and (4) provide as follows:
(1)If the Industrial Division of the Magistrates’ Court finds an employer guilty of an offence relating to the underpayment of an employee, the Court may order the employer to pay the employee any amount that the employee was underpaid and that is still owed to the employee, in addition to imposing a penalty for the offence.
…
(4)An order under this section may be enforced as if it were an order made by the Court in a civil proceeding. However, if any amount remains to be paid after all reasonable means of civil enforcement have been tried, the order may be enforced as if it were a fine imposed by the Court.
It is this power[12] which founds the order for payment of arrears which was made in the County Court.
[12]Together with the power to award interest found in s 161(3).
The Criminal Procedure Act
Section 7(1) of the Criminal Procedure Act limits the time within which a summary offence can ordinarily be charged.
Time limits for filing a charge-sheet
(1)A proceeding for a summary offence must be commenced within 12 months after the date on which the offence is alleged to have been committed except where—
(a) otherwise provided by or under any other Act; or
(b)the accused gives written consent, and the DPP or a Crown Prosecutor consent, to the proceeding being commenced after the expiry of that period.
…
The case for the applicant
The applicant submits that:
(1)The meaning of the text of s 72(2) is plain.
(2)If s 72(2) is not complied with the offence occurs and is complete on the day the employment ends and an employer fails to meet the relevant obligation.
(3)Subsequent payment will not extinguish the offence but may be considered as a matter going relevantly to penalty.
(4)Separate provision is made by the LSLA for civil recovery of the entitlement and the employee’s entitlement in this respect is not affected by s 72(2).
(5)Section 72(2) is not remedial but regulatory and imposes a strict requirement by specifying when the entitlement is to be paid.
(6)The time fixed is an essential element of the offence.
(7)The legislation specifically provides for extension of time for a summary criminal prosecution when this is considered necessary in other contexts.
(8)The meaning of the provision is not to be determined by reference to historic legislation expressed in different terms even if that legislation was concerned with related contexts.
(9)The authorities upon which Worthington relies as demonstrating that the offence is to be understood as a continuing one are each distinguishable from the present case.
(10)There are good reasons for emphasising the requirement for payment on the relevant date. An employee may need speedy payment upon ceasing employment and the stringency of the requirement encourages an employer to make provision in advance.
Worthington submits:
(1)That the relevant offence continues so long as the duty to pay a long service leave entitlement remains unperformed.
(2)Section 72(2) states the day on which the obligation arises, but the obligation is not spent on that day, rather it is ‘extensible’[13] and continues day to day thereafter until performance.
[13]See [59] below.
(3)The gravamen of the offence is the failure to make the required payment, not the failure to make it at the specified time.
(4)The duty to make payment resembles a debt which although payable as at a particular date remains payable until payment is made.
(5)Derham AsJ correctly identified the purpose of the provision as being a means to ensure that employees receive their entitlements when their employment ends and the provision of punishment for any failure by an employer to do so.[14]
(6)The purpose of the provision being a continuing provision is to maintain pressure on employers to meet their obligations to pay long service leave entitlements.
(7)Analogous provisions were considered in R v Industrial Appeals Court; Ex parte Barelli’s Bakeries Pty Ltd[15] and the basis of the decision in that case is not relevantly distinguishable from the present case.
(8)The reasoning in Barelli has been applied in Cox v Ketchell[16] and in R v Industrial Appeals Court; Ex parte Circle Realty Pty Ltd.[17]
(9)The offence in issue should be regarded as a continuing offence because the gravamen of the offence is to be found in something which the offender could at will discontinue.
(10)Section 72 does not create an offence which once committed is complete and exists only in the past.
(11)The change from s 70(2) of the Industrial Relations Act 1979 to the current provision[18] did not change the character of the employee’s entitlement or the correlative obligations imposed upon an employer. It was intended to give effect to the same legislative scheme by plain English.[19]
(12)There is nothing in the Second Reading Speech (or Explanatory Memoranda) relating to s 72 of the LSLA which indicates that there was an intention to create a closed offence, with a limitation period running from the date payment first became due.
(13)Having regard to the history of related provisions, this Court is not justified in ‘putting words into an Act of Parliament which the legislature has not put in, to get rid of a line of authority of which the legislature must be deemed to have known’.[20]
[14]Reasons [75].
[15][1965] VR 615 (‘Barelli’).
[16](1973) Tas SR 33 (‘Cox v Ketchell’).
[17][1980] VR 459 (‘Circle Realty’).
[18]The LSLA was known as the Employee Relations Act 1992 (Vic) until 1996, when the Commonwealth Powers (Industrial Relations) Act 1996 (Vic) was enacted.
[19]Reasons [79].
[20]Brammer v Deery Hotels Pty Ltd (1974) 22 FLR 276, 279 (Joske J, with whom Spicer CJ and Smithers J agreed).
The authorities
Because of the way the case was put for Worthington it is necessary to deal in some detail with the principal authorities canvassed by the parties in submission.
In Jones v Lorne Saw Mills Pty Ltd,[21] the defendant was charged at the Court of Petty Sessions at Birregurra, that it did between 24 May 1922 and 31 July 1922, fail to observe the terms of an award made under the Conciliation and Arbitration Act 1904-1920 (Cth), in that it did not pay wages due under the award for work done in 1920. Section 44(1) of that Act provided:
Where any organisation or person bound by an order or award has committed any breach or non-observance of any term of the order or award a penalty … may be imposed by any District County or Local Court or Court of Summary Jurisdiction which is constituted by a Judge or a police magistrate.
[21][1923] VLR 58 (‘Lorne Saw Mills’).
Cussen J had to consider whether the case was in the ordinary sense a prosecution for an offence. But assuming that it was, he came to the conclusion that there was a continuing offence and the prosecution was in time. He noted authority to the effect that the ordinary way of creating a continuing offence was to provide a penalty for each day that it continued and went on to say:[22]
But, apart from such a provision as to each day, a Statute may indicate by its general terms that an offence is or may be a continuing one, and by use of the expression ‘non-observance’, such is, I think, having regard to the objects of the Commonwealth Conciliation and Arbitration Act, as to ensuring the performance of awards, the case here. It is not necessary to say that every case of ‘non-observance’ falling under sec 44 of the Act implies that the offence is a continuous one. A case might be conceived in which the ‘non-observance’ would have relation to a specified or indicated day or time, and then this result would not follow. It is sufficient to say that, in my opinion, there was here just as much non-observance in 1922 as in 1920, and the information on its face is within time.
[22]Ibid 65.
It may be noted that it was the characterisation of the offence as one concerned with ‘non-observance’ that led to the conclusion that it was a continuing one. Moreover, Cussen J expressly contemplated a case in which the ‘non-observance’ would have relation to a specified or indicated day or time and this result would not follow.
The fundamental question in the present case may be articulated by reference to this distinction, namely whether s 72(2) creates an offence by reference to a specified date or time or on the other hand is directed to ‘non-observance’ of a continuing nature.
In turn, the authorities as a whole can be divided between those which characterise the relevant provision as one concerned with continuing ‘non-observance’ or as one concerned with non-compliance with a specific requirement to meet a statutory time limit.
The underlying conceptual distinction may also be drawn with respect to contractual obligations. In Larking v Great Western (Nepean) Gravel Ltd,[23] the High Court considered whether an obligation of a licensee to erect certain fences and a gate was a continuing one. Dixon J compared a covenant by a lessor to put premises in repair with one to keep them in repair on a continuing basis. As his Honour observed:[24]
The distinction between a covenant to do a definite act capable only of a breach once for all and a continuing covenant has consequences not only in relation to waiver but also in the measure of damage, in the effect of lapse of time under statutes of limitation, and, where the covenant runs with the land, in the liability of an assignee to sue or be sued for further breaches.
His Honour said:[25]
If the covenant names a time for the doing or completion of a definite act, it is clear that failure to do the act within the time involves a breach once for all, and … the same conclusion will follow where no time is limited but a specified thing is to be done and a reasonable time elapses for the performance of the covenant.
[23](1940) 64 CLR 221, 237.
[24]Ibid 238.
[25]Ibid 237 (citations omitted).
In Sloggett v Adams,[26] the relevant provision of the Local Government Act 1919 (NSW) permitted service of a notice requiring a landowner to eradicate noxious weeds within 28 days. The Justices Act 1902 (NSW) specified a six month time limitation for summary offences.
[26](1953) 70 WN (NSW) 206.
The landowner failed to comply with a notice given under the Act and the information was filed more than six months after the expiration of the notice but while the weeds persisted on the land. It was argued that the offence was a continuing one. Street CJ said:[27]
The question whether the offence which has been committed is a continuing offence, or one which was committed once and for all at a specified time, depends upon consideration of the language of the Act in question. Some offences once committed are complete and concluded and exist only in the past. Other offences, however, are continuing offences and are committed day by day so long as the state of affairs which is forbidden continues to exist, and the person responsible for creating that state of affairs is liable day by day for those offences. The test, it seems to me, is one which was prescribed in Ellis v Ellis, by Sir Francis Jeune, who said: ‘The test whether an offence is to be treated in law as continuous is, I think, whether its gravamen is to be found in something which the offender can, at will, discontinue’. Applying that test to the section now under consideration, the legislature has made it clear that the offence is the failure to comply with the requirements of the notice. It is true that the notice deals with the eradication of noxious plants from the land, and one thing which must be done in order to comply with the notice is to eradicate. But the offence here was not a mere failure to eradicate generally, such as would be included under s 472 of the Act; it was a failure to eradicate within the prescribed time, that is, within the twenty-eight days which expired on 2nd July, 1951. At that moment the offence was complete and concluded, and thereafter it existed only in the past. If the offence were a continuing one, it would be one which could be remedied after 2nd July, 1951, but, on the language of the Act, once 2nd July, 1951, had passed the offence was complete, and that offence could never be remedied in the future. If the appellant’s argument were right, the defendant could be prosecuted at any time, years afterwards, for this offence, and a successor in title would also be liable to the same risk. I do not think that that was the intention of the legislature. Section 472 places the continuous burden upon occupiers of land. Section 473 place a specific burden upon a specific owner or occupier of land to comply with a specific notice, and it is the failure to comply with that notice which constitutes the offence. In my view, it was not a continuing offence. It was an offence which was committed, finally and conclusively, when 2nd July, 1851, arrived, and the proceedings not having been instituted until April, 1952, they were not competent and the magistrate was not entitled to adjudicate upon that information.
[27]Ibid 208.
Owen and Clancy JJ both noted that after the expiration of the period in the notice the landowner could never deny the offence was complete.[28]
[28]Ibid 208–9.
It was central to each of the judgments that the relevant statutory provision made it an offence not to comply with the terms of a notice given under it. The distinction drawn between continuing offences and those created by statutory provisions which make clear that the offence is constituted by a failure to comply with a specific time requirement reflects the distinction drawn by Cussen J in Lorne Saw Mills. It has continued to be applied both in this state and New South Wales and elsewhere.[29]
[29]See eg Environment Protection Authority v Alkem Drums Pty Ltd (2001) 121 A Crim R 152; Hunter v City of Joondalup (2015) 257 A Crim R 299.
In Barelli,[30] the Full Court of this Court, comprising O’Bryan, Smith and Gillard JJ considered the offence created by s 205 of the Labour and Industry Act 1958 of failing to pay the amount of wages prescribed by a Wages Board determination.
[30][1965] VR 615.
Section 198(1) of the Labour and Industry Act 1958 provided that where an employer employed any person on work for which the lowest rate had been fixed in a relevant determination, the employer was liable to pay without any deduction the rate so determined. Section 205(1) provided that every person who failed to comply with the provisions of the Act was guilty of an offence. The Wages Board determination provided that the day and latest hour for payment of wages was Thursday at 5:30 pm. The wages due related to the week ending 17 April 1963. The information alleged a failure to pay the relevant amount on 4 March 1964, that is, a subsequent date within the relevant limitation period. The employer argued that if there was a contravention of, or failure to comply with, the provisions of the determination then the offence was committed on Thursday 18 April 1963 well beyond the relevant limitation period of six months before the information was laid.
O’Bryan and Gillard JJ discussed the concept of a continuous or continuing offence:[31]
A continuous or continuing offence is a concept well known in the criminal law and is often used to describe two different kinds of crime. There is the crime which is constituted by conduct which goes on from day to day and which constitutes a separate and distinct offence each day the conduct continues. There is, on the other hand, the kind of conduct, generally of a passive character, which consists in the failure to perform a duty imposed by law. Such passive conduct may constitute a crime when first indulged in but if the obligation is continuous the breach though constituting one crime only continues day by day to be a crime until the obligation is performed. In such a case in measuring the period of limitation, if one is applicable, the right to lay an information is not barred if the breach has continued up to the day the information was laid or if the breach was cured before the information was laid, time counts from the day when the obligation was satisfied. The question whether an offence is of a continuing or continuous nature generally arises in the case of statutory offences and the question is solved by ascertaining what is the precise nature of the offence.
[31]Ibid 620.
After canvassing relevant authorities, their Honours then concluded:[32]
The obligation to pay in full the appropriate rates fixed by the determination arises under s 198(1) which reads: ‘Where any employer employs any person on work for which the lowest prices or rates have been fixed in a determination, such employer shall be liable to pay and shall pay in full in money without any deduction whatever to such person the price or rate so determined’.
The section which creates the obligation fixes no time for the performance of the obligation to pay. As we have already noted the determination does fix a time for payment, ie not later than 5.30 pm on the Thursday, but we find it impossible to infer from the combined operation of the statute and the determination that the statutory obligation to pay is spent if payment is not made at the time fixed by the determination. An offence under s 205 is complete if payment is not then made, but the offence of contravening or failing to comply with the obligation to pay money is one in which, to borrow the words of Cussen J, in Jones v Lorne Saw Mills Pty Ltd, ‘The time element is extensible’.
[32]Ibid 622.
Smith J held that the offence charged was not that the employer allowed the time fixed for payment to pass without having paid. It was that, monies having become due and payable, the employer failed to perform the duty imposed by the Act of paying them. The breach of the duty continued on beyond the time fixed for payment. Accordingly, the offence was a continuing one.[33]
[33]Ibid 623.
In Welsh v Cornfoot,[34] Lush J had to consider provisions of the Companies Act 1961 requiring a company to lodge a return of allotment of shares within one month thereafter (s 54(1)); to give notice of the situation of its registered office within one month of incorporation (s 112)(1)) and to lodge a return of its directors, manager and secretaries (s 134(6)). Each of the relevant sections of the Act contained a provision that: ‘If a default is made every officer of the company who is in default shall be guilty of an offence against the Act’.
[34](1973) VR 21.
Lush J held that a failure to lodge the required documentation within the specified time constituted a complete offence:[35]
The authorities cited to me show, I think, that as a general rule when a time for compliance with a statutory requirement is fixed, the offence of non-compliance is complete at the end of that time and the offence is not a continuing one. The problem arises in the application of limitation periods when a court is called on to decide whether a prosecution has been instituted within a fixed time after the offence has been committed.
[35]Ibid 26.
His Honour then referred to Lorne Saw Mills Pty Ltd and Barelli. He observed that the terms of the statute are the first source from which the nature of the offence is to be ascertained.[36]
[36]Cf Leydon v Forrest (1980) 23 SASR 364, 375 (King CJ).
He noted that earlier versions of the Companies Act 1961 had provided for day by day penalties which were no longer to be found in the Act with which he was concerned. He referred to Sloggett v Adams[37] and noted that as in that case the non-compliance with the date specified could not be subsequently rectified.
[37](1953) 70 WN (NSW) 206.
He emphasised that in Barelli all the judges were careful to point out that the statute then under consideration fixed no time for compliance and doubted the correctness of some New South Wales decisions in the industrial jurisdiction before observing:[38]
It may be that the final comment on these authorities is that they show that the relevant legislation must be analysed in every case.
[38]Welsh v Cornfoot (1973) VR 21, 26.
In Brammer v Deery Hotels Pty Ltd,[39] the Australian Industrial Court reaffirmed the principle stated in Lorne Saw Mills noting that it had applied that principle in Australasian Meat Industry Employees Union v Thomas Playfair Pty Ltd.[40] The relevant provision of the Conciliation and Arbitration Act 1904-1922 had been amended in 1965 and relevantly provided:
Proceedings under this section in respect of a breach or non-observance of a term of an order or award may be commenced at any time within twelve months after the commission of the breach or non-observance.
[39](1974) FLR 276.
[40](1962) 3 FLR 234, 238.
Joske J with whom Spicer CJ and Smithers J agreed, referred to the decision in Barelli and described the decision of Smith J as dealing with the matter cogently. The continuing failure to pay entitlements in accordance with the relevant award constituted a continuing offence. Joske J said:[41]
In view of this line of authority I am unable to conclude that sub-s (4) would have been drafted as it has been if it were intended to get rid of this line of authority, but consider that it would have expressly provided that the time limit for taking proceedings in respect of a continuing act or breach would commence from the date when it first arose or was committed and conclude on the expiration from that date of the period of limitation. This it has not done. One is not justified in putting words into an Act of Parliament which the legislature has not put in, to get rid of a line of authority of which the legislature must be deemed to have known.
[41]Brammer v Deery Hotels Pty Ltd (1974) FLR 276, 279.
The Court expressly accepted that the decision of Cussen J in Lorne Saw Mills was correct.[42]
[42]Ibid.
In Cox & Ketchell,[43] the Supreme Court of Tasmania followed Barelli, finding that the obligation imposed by a Wages Board determination to pay an amount of wages on Thursday each week was a continuing obligation. Neasey J explained:[44]
I find it impossible to infer that the failure to comply with the relevant Wages Board determination is spent if payment is not made at the time fixed by the determination. In the present case that was, pursuant to cl 26 of the award, not later than Thursday in each week in the employer’s time. It would, I think, be absurd to suggest that the obligation to comply with the award in respect of any given work week ceased after Thursday of that week. On the contrary … the obligation to comply with the award subsists from day to day until compliance.
[43][1973] Tas SR 33.
[44]Ibid 37.
In Circle Realty,[45] O’Bryan J applied the principle stated in Barelli to a prosecution arising out of an employer’s failure to pay a worker holiday pay.
[45][1980] VR 459.
Section 200(1)(c) of the Labour and Industry Act1958 provided:
(1)Subject to this section where a price or rate of payment for a person or class of persons has been fixed in a determination which is in force every person who —
(c) contravenes or fails to comply with any of the provisions of the determination …
shall be guilty of an offence.
The relevant determination stated:
Where the employment of any worker by any employer is terminated at the end of a period of employment to which this sub-clause applies the employer shall forthwith pay to the worker, in addition to all other amounts due to him, an amount equal to four forty-eighths of his ordinary pay for that period of employment.
Section 192(1) of the Act required an information for any offence under the Act to be laid within 12 months of the commission of the offence.
The worker’s employment terminated on 9 February 1977. The information alleged that the employer failed to pay the worker on 22 August 1978 and was issued within 12 months of that date.
O’Bryan J considered the meaning of ‘forthwith’ in the determination and concluded that ‘forthwith’ could not be intended to stipulate a definite time or date for payment after which time or date the obligation to pay was spent:[46]
Different situations relating to the employment may require different meanings to be given to the obligation to pay holiday pay. Thus, if employment is terminated at the end of a significant period of prior notice given by either the employer or the worker, the obligation under cl 14B may be to pay immediately upon cessation of work. On the other hand, if a workman fails to return to work one day, the obligation to pay holiday pay, which is due to the worker, may be satisfied if the employer ascertains the amount due and either, forwards the same to the worker within a reasonable time or, retains it until the worker returns to collect it. But, in every case, it is the obligation to pay the amount due that is the essential element involved. Where an offence is charged and it is alleged that the obligation has not been met by the employer the use of the word ‘forthwith’ in the information does not introduce any essential element into the offence. The offence is the failure to pay the amount due under the determination and the obligation to pay continues until payment is made.
[46]Ibid 463-4.
As to determining when time began to run for the offence, his Honour concluded:[47]
Quite clearly the legislature has insisted that payment of holiday pay, calculated at a particular rate, shall be made promptly upon the termination of employment. But the burden that is imposed upon the employer to pay holiday pay does not abate if it is not paid ‘forthwith’. It continues until payment has been made. There are no doubt sound reasons of policy why holiday pay should be paid promptly upon termination of a contract of employment. The use of the word ‘forthwith’ in the determination gives effect to that policy. However, in my opinion, after closely considering the law which creates the offence, it is the failure to pay holiday pay that is the gravamen of the offence, and not the failure to pay ‘as soon as reasonably possible’ or ‘as soon as practicable’ or ‘without undue delay’.
[47]Ibid 465.
It may be noted that as was the case in Barelli, the statute itself did not fix the date for payment for holiday pay. Likewise, the offence in issue extended to a failure to comply with any of the provisions of the determination.
The Industrial Relations Act 1979
The immediate predecessor provisions to those contained in the LSLA which are now in issue were found in the Industrial Relations Act 1979 (‘the 1979 Act’).
Having regard to the submissions advanced on behalf of Worthington it is desirable for completeness to set out the relevant terms of the 1979 Act. Section 70 governed the question of when long service leave was to be taken. Sections 70(2) and (4) relevantly provided:
(2)Notwithstanding anything to the contrary in sub-section (1) where the employment of a worker is for any reason terminated before he takes all the long service leave to which he is entitled or where a long service leave entitlement accrues to a worker because of the termination of his employment the worker shall be deemed to have commenced to take his leave on the day his employment was terminated and he shall be entitled to be paid by his employer ordinary pay in respect of that leave.
…
(4)The ordinary pay of a worker on long service leave shall be paid to him by the employer when the leave is taken and shall be paid in one of the following ways:
(a)In full when the worker commences his leave; or
(b)At the same time as it would have been paid if the worker were still on duty; in which case payment shall, if the worker in writing so requires, be made by cheque posted to a specified address; or
(c)In any other way agreed between the employer and the worker—
and the right to receive ordinary pay in respect of the leave shall accrue accordingly.
Section 72 provided for the reference to the Magistrates’ Court of disputes as to entitlements to long service leave and fixed a five year limitation period for such referrals.
Section 77 provided for the keeping of long service leave records and for offences constituted by contravention or failure to comply with any of the provisions of this Division of the Act.
(1)Every employer shall keep or cause to be kept a long service leave record in the form approved by the registrar and containing such particulars as are required by the Commission.
(2)Every person who —
(a)makes any false or misleading statement in or any material omission from any long service leave record which he is required to keep;
(b)obstructs an inspector in the exercise of his powers under this Part;
(c)fails to comply with any requirement or direction lawfully given by an inspector for the purposes of this Part or to furnish any information lawfully demanded by an inspector for the purposes of this Part ; or
(d)contravenes or fails to comply with any of the provisions of this Division —
shall be guilty of an offence and liable to a penalty of not more than $200.
I would accept as Derham AsJ did[48] that s 77(2)(d) created a continuing offence. It was directed to ‘non-observance’ in the sense explained in Lorne Saw Mills.
[48]Reasons [76].
For completeness I note that s 77(4) fixed a limitation period of five years for the institution of proceedings in respect of such offences. It provided:
Notwithstanding anything to the contrary in this or any other Act an information for an offence against this section may be laid at any time within five years after the commission of that offence.
Analysis
The plain words of s 72(2) impose an obligation to pay the long service leave entitlement ‘on that day’, that is, the day upon which it accrues pursuant to s 72(1).
Section 72(2) creates a specific offence by reference to this obligation. The offence is not a generic one constituted by a failure to observe one of a series of provisions under the relevant part of the LSLA.
Whilst ss 58 and 72(1) together with s 81 of the LSLA create a continuing obligation upon the part of an employer to pay long service leave entitlements, s 72 provides for a specific offence by reference to a specific or stipulated date for payment.
The continuing obligation will remain enforceable by way of a determination pursuant to s 75, or a civil claim made pursuant to s 160 (facilitated by s 81).
The specific offence created by s 72(2) is governed by the limitation provision contained in s 7 of the Criminal Procedure Act. It is to be contrasted with other provisions contained in predecessor legislation such as s 77(4) of the 1979 Act. It is also to be contrasted with the discrete limitation provision found in s 80(5) of the LSLA governing the summary offences created under ss 80(1), (2) and (3) of the LSLA. Further, s 80 deals discretely with the obligation of employers to keep records. This was formerly the subject matter of s 77 of the 1979 Act. That section rolled up a further general provision relating to contravention of the Division with the offences it created relating to failure to keep records. A deliberate choice was made to continue the extended limitation period with respect to offences relating to the keeping of records in the LSLA. No parallel provision was made with respect to failures to comply with the long service leave provisions generally.
Historical considerations cannot be relied upon to displace the clear meaning of the text.[49] But in any event, s 72(2) takes a fundamentally different approach from the provisions of s 77(2) of the 1979 Act. Section 77(2) of the 1979 Act is a general provision which extends to ‘non-observance’ of the obligation to pay long service leave. It is of the same character as that considered in Lorne Saw Mills. It extends to a failure to perform an obligation to pay of the type identified in Barelli and Circle Realty. Conversely, s 72(2) provides for a specific statutory offence fixed by reference to a specific or stipulated point in time. Accordingly, the construction for which the applicant contends does not result in ‘putting words into an Act of Parliament which the legislature has not put in, to get rid of a line of authority of which the legislature must be deemed to have known’.[50]
[49]See the statements of principle set out in [19] and [20] above.
[50]Brammer v Deery Hotels Pty Ltd (1974) 22 FLR 276, 279 (Joske J, with whom Spicer CJ and Smithers J agreed).
Insofar as it is submitted by Worthington that s 72(2) of the LSLA is to be regarded as the plain English equivalent of s 77(2) of the 1979 Act, it would be an odd outcome if the utilisation of plain English led to s 72(2) being given other than its plain meaning.
Derham AsJ recognised that the construction question before him was not free from difficulty[51] but he ultimately concluded:[52]
In the context of the LSLA and having regard to the subject matter and purpose of sub-s 72(2) of the LSLA, and the Act more broadly, the words ‘on that day’ are apt to identify the time at which the breach of the sub-section begins and does not identify a completed offence. The offence created by sub-s 72(2) of the LSLA, once committed, is extensible and continues day by day from that time until the payment required is made. It is, in my view, a continuing offence.
[51]Reasons [72].
[52]Ibid [84].
I respectfully disagree. For the reasons I have explained I am not persuaded that the subject matter or purpose of s 72(2) require it to be given other than its plain meaning.
It may be accepted that s 72(1) results in a continuing obligation to pay long service leave entitlements (for which, as mentioned, there can be recovery by means of a civil claim) but it does not follow that s 72(2) creates a continuing summary offence. The elements of the offence are plainly stated in the subsection itself. The offence was complete on the day the employment ended and the required payment was not made. The charge was not brought within time.
This conclusion renders it unnecessary to resolve the further question, agitated during the course of the hearing of the appeal, whether the charge was in any event defective because it alleged a continuing offence extending beyond the relevant limitation period in s 7 of the Criminal Procedure Act of twelve months after the offence occurred.[53]
[53]Cf the approach taken in Lorne Saw Mills, Barelli and Circle Realty.
The principles stated by the High Court in Marks v The King[54] would support the view that only offending within the relevant 12 month period could properly be the subject of a summary charge, but in any event the question becomes academic having regard to my primary conclusion.
[54](1937) 57 CLR 58.
Conclusion
Accordingly, leave to appeal should be granted and the appeal should be allowed. The orders of the County Court must be set aside and the charge dismissed.
NIALL JA:
I have had the advantage of reading the reasons for judgment in draft of Osborn JA. I agree that leave to appeal should be granted and the appeal allowed for the reasons that his Honour gives.
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