Detector Inspector Pty Ltd v CoInvest Ltd - [2025] VSC 135

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

EMPLOYMENT AND INDUSTRIAL LIST

S ECI 2024 01916

DETECTOR INSPECTOR (VIC) PTY LTD (ACN 602 592 110)	Plaintiff
v
COINVEST LIMITED (ACN 078 004 985) (trading as LEAVEPLUS)	Defendant

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JUDGE:	Watson J
WHERE HELD:	Melbourne
DATES OF HEARING:	2 & 3 December 2024
DATE OF JUDGMENT:	25 March 2025
CASE MAY BE CITED AS:	Detector Inspector Pty Ltd v CoInvest Ltd
MEDIUM NEUTRAL CITATION:	[2025] VSC 135

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EMPLOYER AND EMPLOYEE – Long service leave – Whether plaintiff required to make contribution to portable long service leave fund – Plaintiff seeking declaration that employees are not covered by portable long service leave scheme – No declaration should be made – Whether plaintiff is ‘in the construction industry’ – Whether work performed is ‘construction work’ – Plaintiff is in the construction industry – Work performed is ‘construction work’ – Whether certain rule amendments invalid because not approved by Governor in Council – Rule amendments did not require Governor in Council approval – Whether plaintiff prejudicially affected by a statutory rule which was approved by Governor in Council – Whether s 16 of Subordinate Legislation Act1994 applies – Construction Industry Long Service Leave Act 1997 ss 4, 6 and 7 – Subordinate Legislation Act ss 3, 16 and 17 – Baytech Trades Pty Ltd v CoInvest Ltd [2015] VSCA 342; EnergyAustralia Pty Ltd v CoInvest Ltd [2025] VSC 100 considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Young KC Ms R Amamoo	Marshall+Dent+Wilmoth Lawyers
For the Defendant	Mr P Hanks KC Ms M Brady	Maddocks

HIS HONOUR:

This case concerns the portable long service leave scheme (‘portable long service leave scheme’) established by the Construction Industry Long Service Leave Act 1997 (Vic) (‘the Act’).

The plaintiff, Detector Inspector (Vic) Pty Ltd (‘Detector Inspector’) operates a business carrying out safety checks and maintenance of smoke alarms, electrical and gas appliances in residential rental properties in Victoria. It employs gas fitters, electricians and smoke detector technicians (‘the employees’).

The defendant, CoInvest Ltd currently trades as LeavePlus (‘LeavePlus’) and is the trustee of the Construction Industry Long Service Leave Fund (‘the fund’).

A dispute has arisen between Detector Inspector and LeavePlus regarding whether Detector Inspector is required to make contributions to the fund in respect of the employees. On 20 February 2024 LeavePlus determined that the employees are covered by the portable long service leave scheme and that Detector Inspector is required to make contributions to the fund in respect of the employees (‘the determination’). Detector Inspector says their employees are not covered by the portable long service leave scheme and so they are not required to make contributions.

Detector Inspector seeks relief in the form of an order quashing the determination, declarations to the effect that the employees are not covered by the portable long service leave scheme and a mandatory injunction seeking return of an amount it paid to LeavePlus in respect of the employees,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] VSC 135
Decision Date: 25 March 2025

CaseChat Overview and Summary

Detector Inspector Pty Ltd sought a declaration that their employees were not subject to the portable long service leave scheme under the Construction Industry Long Service Leave Act 1997. The case was heard in the Supreme Court of Victoria. The central legal issues revolved around whether the plaintiff was considered to be in the construction industry and whether the work performed by their employees constituted construction work. Additionally, the court had to determine if certain rule amendments were invalid due to lack of approval by the Governor in Council and whether the plaintiff was adversely affected by a statutory rule that was approved by the Governor in Council.

The court found that Detector Inspector Pty Ltd was indeed part of the construction industry and that the work performed by its employees qualified as construction work. The amendments to the rules did not require approval by the Governor in Council, and therefore, were valid. Furthermore, the court concluded that section 16 of the Subordinate Legislation Act 1994 did not apply to the circumstances of this case. The court referenced previous cases, Baytech Trades Pty Ltd v CoInvest Ltd and EnergyAustralia Pty Ltd v CoInvest Ltd, to support its findings.

The court ruled that no declaration should be made that the plaintiff’s employees were not covered by the portable long service leave scheme. The court's decision was based on the established definitions and interpretations of the relevant statutes, as well as the precedent set by prior cases. No further orders were made beyond the denial of the declaration sought by the plaintiff.

Orders