DOYLE & LONG SERVICE LEAVE AUTHORITY (Administrative Review) - [2013] ACAT 34

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

DOYLE & ACT LONG SERVICE LEAVE AUTHORITY
(Administrative Review) [2013 ] ACAT 34
AT 12/80
Catchwords: ADMINISTRATIVE REVIEW – long service leave entitlement – building and construction industry – whether the Applicant was a worker in construction industry - Tribunal jurisdiction: whether decision is a reviewable decision - pro rata long service leave - backdating recognition of long service leave – prior service under entity not registered with the Long Service Authority and not trading now – days short of days needed for recognition of service - Registrar’s powers in relation to registration of worker – interpretation of beneficial legislation – whether rights under previous legislation continued or extinguished

List of legislation: ACT Civil and Administrative Tribunal Act 2008 (ACT)

ss 68

Legislation Act 2001(ACT), sections 138, 139 and 140
Long Service Leave (Portable Scheme) Act 2009 (ACT,) ss 40, 41, 44, 47, 49, 51, 80, 82, Schedule 1 (1.2, 1.3, 1.10), and Schedule 5
Long Service Leave (Building and Construction Industry) Act 1981 ss. 32, 36, 36A, 36B

List of cases: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-stock Corp. (1980) 29 ALR 333

Tribunal: Ms E. Symons, Presidential Member

Date of Orders:  17 May 2013
Date of Reasons for Decision:       17 May 2013
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 12/80

BETWEEN:
MATTHEW DOYLE

Applicant

AND:
ACT LONG SERVICE LEAVE
AUTHORITY
Respondent

TRIBUNAL: Ms E. Symons, Presidential Member

DATE:17 May 2013
ORDER

The Decision under review is set aside.
The Applicant’s registration with the Respondent is backdated to 3 March 2003.
Subject to Order 4, the Respondent is to pay to the Applicant his pro rata long service leave from 3 March 2003.
The Respondent is to deduct the Applicant’s employer’s unpaid levies due between 3 March 2003 and 9 August 2004 from the Applicant’s accrued long service leave payment.
………………………………..
Ms E. Symons

Presidential Member

REASONS FOR DECISION

This is an application by Matthew Doyle (‘the Applicant’) pursuant to section 1.10 of Schedule 1 of the Long Service Leave (Portable Scheme) Act 2009 (ACT) (‘the LSL Act’) as it was in force at the relevant time, for administrative review of the decision of the ACT Long Service Leave Authority (“the Authority/the Respondent”) not to pay him pro rata long service leave.

The Applicant was employed for remuneration by Construction Industry Skills Centre (‘CISC’) from 3 March 2003 to 9 August 2004. CISC never registered the Applicant as a worker within the building and construction industry (‘the industry’) as defined in the LSL Act. CISC no longer exists as an entity.

From 9 August 2004 to 13 September 2006, the Applicant was not employed in the industry. On 14 September 2006, the Applicant recommenced work in the industry and since then he has been registered as a worker within the industry.

It is common ground that:

·   the Applicant permanently ceased working in the industry in 2011;
·   workers who permanently leave the industry are entitled to pro-rata payment of their accrued long service leave provided they have a minimum of 1,100 days of registered employment;
·   the Respondent determined the Applicant had accrued 1046 days of service within the industry; and
·   if the Applicant’s employment with CISC was recognised and credited, he would be entitled to a further 333 days of long service leave.

The Applicant applied to the Respondent for his pro–rata long service leave on or about 10 September 2012. The application was refused by the Registrar of the Authority and this decision was reviewed and rejected by the Board of the Authority at a meeting on 24 September 2012. The Applicant was notified of the Board’s decision by letter dated 3 October 2012[1]. This letter stated that the original request was declined by the Registrar on the basis of the legislative requirements and referred to section 47 and section 80 of the LSL Act.

The Applicant’s Contentions:-

[1] Annexure “B” to the Application for Review lodged 19 October 2012

The Applicant contends[2] that:
[2] Applicant’s Statement of Facts and Contentions dated 21 December 2012, pages 2,3
(a)the Applicant’s work with CISC from 3 March 2003 to 9 August 2004 (‘the relevant period’) was building and construction work as defined in section 1.2 in Schedule 1 of the LSL Act;
(b)the Applicant’s employment with CISC during the relevant period was employment in the industry as defined in section 1.3 of the LSL Act;
(c)the Applicant is entitled to be credited for his employment during the relevant period with CISC;
(d)the Applicant need not apply to be credited with his service with CISC during the relevant period, pursuant to section 47 of the LSL Act;
(e)the Authority may register the Applicant as a worker under section 44 of the LSL Act for the relevant period;
(f)the Respondent has been provided with sufficient information for the Authority’s Registrar (‘the Registrar’) to exercise the discretion in section 44 of the LSL Act; and
(g)the Respondent has been provided with sufficient information to satisfy the Registrar and the Respondent that the Applicant was employed as a worker performing building and construction work within the industry during the relevant period.

The Respondent’s Contentions

The Respondent contends that[3]:
[3] Respondent’s Statement of Facts and Contentions dated 14 January 2013,page 2
(a)the Applicant’s period of service with CISC does not meet the requirements for recognition of prior service as prescribed in the LSL Act;
(b)the Applicant was registered as an employee as a result of an application made by him in accordance with section 32 of the Long Service Leave (Building and Construction Industry) Act 1981 (‘the 1981 Act’);
(c)at the time of the Applicant’s registration, the 1981 Act did not contain any provision equivalent to section 47 in the LSL Act, which specifically provides for recognition of prior service. Section 36 of the 1981 Act allowed for backdating the date when registration takes effect in accordance with the requirements of section 36(7);
(d)in accordance with section 36 of the 1981 Act, as it would have applied at the time of the Applicant’s registration, the Applicant was not an employee as at the prescribed day, as he was not employed in the industry on the day 12 months prior to his registration. Accordingly, his registration would take effect as at the first day of his employment in the industry after the prescribed day, 14 September 2006, and his CISC employment could not be acknowledged as eligible prior service;
(e)In 2007, in accordance with the Long Service Leave (Building and Construction and Contract Cleaning Industries) Legislation Amendment Act 2007 (‘the Amendment Act’), section 36 of the old Act was amended to have the effect that backdating of registration was no longer permitted, but rather a specific system for the recognition of prior service was introduced;
(f)the system introduced by the Amendment Act is equivalent to the current section 47 of the LSL Act. It is clear from the explanatory statement to the Amendment Bill that the legislative intent in making the amendments in 2007 was to prevent backdating of registration and make the registration date a point fixed in time, being the date the application for registration is received by the Registrar;
(g)the Applicant’s registration date is fixed at 14 September 2006, being the date the Registrar received his application for registration; and
(h)if the Tribunal accepts the Applicant’s submission that the Authority need not have regard to section 47 of the LSL Act as section 44 allows the Registrar to backdate the date of registration without an application, such power is discretionary and the exercise of a discretionary power under section 44 to register a worker is not a reviewable decision as defined in section 80 and schedule 5 of the LSL Act. The Tribunal has no jurisdiction to review a decision made only under section 44 of the LSL Act.

The Hearing

The application for review of the Board’s decision was heard on 8 February 2013.

The Applicant was represented by Mr Jones, Solicitor, and the Respondent was represented by Ms Holley, Solicitor. The Applicant gave sworn evidence and Ms Roncevic gave sworn evidence for the Respondent. Both the Applicant and Ms Roncevic were cross examined.

At the conclusion of the hearing the Tribunal reserved its decision.

Preliminary Issue

It was clear from the parties’ Statements of Facts and Contentions that there was an issue concerning the legislative basis of the Respondent’s decision which required the Tribunal to determine, as a preliminary issue, whether the decision was a reviewable decision and whether the Tribunal has jurisdiction to review that decision.

The Applicant’s solicitor submitted that:
·   the initial application to the Respondent for pro rata leave was made pursuant to section 1.10(6) of the LSL Act and rejected by the Registrar before being reviewed and rejected by the governing Board of the Respondent pursuant to that section;
·   Column 21 of Schedule 4 of the LSL Act provides that a decision made pursuant to section 1.10(6)is a reviewable decision;
·   the Tribunal has jurisdiction; and
·   the initial application was not made pursuant to section 47 of the LSL Act.
The Respondent’s solicitor submitted, based on the Applicant’s submissions, that the Tribunal does not have jurisdiction if the Respondent’s decision was a discretionary decision made pursuant to section 44 of the LSL Act. Section 80 defines reviewable decisions and does not include a discretionary decision.

The Respondent’s solicitor did concede, if the Respondent’s decision was made pursuant to section 47 of the LSL Act, as stated in their decision letter, such a decision would be a reviewable decision as defined in section 80 of the LSL Act.

Therefore, it is necessary to determine whether the decision under review is a reviewable decision.

Applicable Law

Section 68 of the ACT Civil and Administrative Tribunal Act 2008 provides:
68 Review of decisions
(1) This section applies if the tribunal reviews a decision by an entity.
(2) The tribunal may exercise any function given by an Act to the entity
for making the decision.
Note A reference to an Act includes a reference to the statutory instruments
made or in force under the Act, including regulations (see Legislation
Act, s 104).
(3) The tribunal must, by order—
(a) confirm the decision; or
(b) vary the decision; or
(c) set aside the decision and—
(i) make a substitute decision; or
(ii) remit the matter that is the subject of the decision for
reconsideration by the decision-maker in accordance with
any direction or recommendation of the tribunal.
Part 9 of the LSL Act refers to notification and review of decisions. A ‘reviewable decision’ is defined in section 80 as follows:
“reviewable decision means a decision mentioned in schedule 5, column 3 under a provision of this Act mentioned in column 2 in relation to the decision”
Applications for review are defined in section 82 of the LSL Act as follows:
“The following may apply to the ACAT for review of a reviewable decision:

(a)An entity mentioned in schedule 4, column 4 in relation to the decision;
(b)And other person prescribed by regulation.”

Section 1.10 of Schedule 1 of the LSL Act refers to payment instead of long service leave in the building and construction industry. Relevantly, subsections 1.10(1) and (6) state:
“(1) If a registered worker for the building and construction industry is entitled to payment instead of long service leave under this Act, the worker may apply to the authority for payment.
…
(6) If the governing board is satisfied that the applicant is entitled to payment instead of long service leave under this Act the authority must pay the Applicant the amount payable under section 1.11.”
Schedule 5 of the LSL Act lists 22 items which are reviewable decisions. Item 22 identifies decisions under Schedule 1.1.10(6) that the governing board is not satisfied that the Applicant is entitled to long service leave as reviewable decisions.

The Tribunal is satisfied, from the evidence, that the Applicant’s Leaving the Industry Claim Form was accompanied by his letter which stated – “This application is made pursuant to 1.8 of Schedule 1 of the Long Service Leave (Portable Schemes) Act 2009 (ACT), as it was in force at the relevant time….”

Mr Jones confirmed that the Claim was actually made pursuant to section 1.10 of Schedule 1 of the LSL Act. He submitted that the Respondent’s decision was framed incorrectly by the Board in their letter to the Applicant; there was no decision arising out of either section 47 or section 80 of the LSL Act. The only decision that could be made was in relation to the application which had been made under section 1.10. Under 1.10(6), that decision was a reviewable decision.

Mr Jones also put to the Tribunal that the submissions the Applicant had earlier made to the Board in relation to sections 44 and 47 followed the Board’s advice to the Applicant in relation to how they were treating this matter. He did not concede that the Board had correctly applied the law.

Although Ms Holley submitted that the issue that was determined by the Respondent was the ‘recognition of the Applicant’s prior service’ and the letter advising the Applicant of the Board’s decision was written with section 47 in mind, the Tribunal noted that Ms Holley conceded, while it was not clearly articulated in each party’s documents, the reality is the application was made under section 1.10. She submitted that the Respondent was required to consider section 47 as part of its decision making in determining the application under section 1.10. Pursuant to section 47 the Applicant did not have enough service (1046 days). Ms Holley acknowledged that a decision pursuant to section 47 of the LSL Act is also a reviewable decision.

Notwithstanding that the Respondent stated in the letter notifying the Applicant that his claim had been rejected on the basis of subsections 47(2) and (3) and section 80 of the LSL Act, the Tribunal is satisfied that for the purpose of determining jurisdiction, as all parties acknowledge that the claim had been made pursuant to section 1.10 of Schedule 1, the Respondent’s decision should be determined to have been made pursuant to Schedule 1, section 1.10(6) of the LSL Act. Item 22 of Schedule 5 of the LSL Act provides that a decision made pursuant to section 1.10(6) is a reviewable decision. The Tribunal also notes that if the claim had been decided pursuant to section 47 of the LSL Act, that decision is also a reviewable decision.

The Tribunal is satisfied, for the above reasons, that the Respondent’s decision is a reviewable decision and the Tribunal has jurisdiction.

The Tribunal will return to the parties’ evidence and competing submissions in relation to the legislative basis of the Respondent’s decision later in the decision.

The evidence

Mr Doyle’s evidence

Mr Doyle told the Tribunal that he had graduated from Marist College in 2002 and he commenced employment on 3 March 2003. He believed he was employed by Construction Industry Training and Employment Association Incorporated (CITEA) as a building cadet on a building and construction apprenticeship and hired out to host employers. As a building cadet he worked in all of the processes in the building and construction industry.

After he commenced this application he learned that he was actually employed by CISC (a group training authority) who was trading through CITEA. Mr Doyle said he wore clothing with a CITEA emblem and he completed CITEA time sheets. He was paid by CISC.

While with CISC he was hired out to Sutton and Horsley for 16 months. During this time he was doing hands on building work on site and office work. The building work ranged from assigned general construction labouring to supervised carpentry and plumbing. The office work ranged from making diary entries, estimating jobs, updating drawing schedules, doing general day to day paperwork and basic contract administration which was work a building contractor was required to do.

He said that this work was all part of the one process as the administrative tasks assisted with the building work and was a necessary requirement to complete building work. He said he needed to do both the paperwork and on site construction work were necessary to complete his education qualification. This also included doing occupational health and safety reports, as required by legislation.

Before he left CISC and the industry in August 2004 he also worked for two months with Integrated Constructions doing the same work as he had done at Sutton and Horsley.

After leaving CISC he enrolled in science and physical education studies for one semester at the University of Canberra. He subsequently studied accounting at the Canberra Institute of Technology for 12 months. He did not gain any formal qualification from these studies.

On 14 September 2006, he obtained employment as a building cadet with the Masters Builders Association (MBA), another group training organization, which offered building cadetships. He started off where he had left his training at CISC. His tasks at MBA were similar to his tasks at CISC. This time his host employer was Multiplex. While working with Multiplex he was still doing his educational studies with MBA. He said it was common practice for a cadet to do the practical work with a builder while completing the education component with MBA.

Mr Doyle told the Tribunal that on completion of a building cadetship one would get a Diploma of Construction and Building Management (‘the Diploma’) and be eligible to obtain a ‘B’ Class Building Licence. Holders of a ‘B’ Class Licence could build residential and low rise construction. This was a higher qualification than being a carpenter; the licensee could sign building construction work as a licensed builder. He would need this licence to continue working in the industry. His recollection was that to hold a B Class Building Licence you needed to have the Diploma as a minimum requirement.

He worked with the MBA for approximately 18 months at which time the Multiplex building project at Tuggeranong had finished and all of their work was in Sydney. Multiplex obtained new employment for him with PB Services (‘PBS’) for the continuing practical component of his cadetship. He said that it was common for workers to go where the work is and this can necessitate employers frequently. While with PBS he continued his education with MBA.

With PBS, his work continued as before except that his responsibilities were increasing as he had been in the industry longer and he was spending more time doing on site building and administrative work. He described the administrative work as being related to the building work. He had to file his own paperwork; he did not file others’ paperwork. He said he was not there to oversee wage payments or to do photocopying or answer phones or direct calls. He remained with PBS for about two years.

After PBS he was offered a role as a cadet site engineer with Baulderstone, which was a progression path to junior foreman or a project coordination role for a lot of MBA building cadets. He chose the career path to junior foreman. He described this work as basic safety and on site administration work and certain aspects of the construction; it was his role to manage and oversee that work. It included some paperwork. He did not know anyone doing this work who did not do some paperwork, as paperwork was part of the work in that industry.

While at Baulderstone, he found out from a senior general foreman he was working with that it was the responsibility of all employers to register all workers for long service leave and, at that time, Baulderstone had not been paying long service leave for their ACT workers. Mr Doyle said he called the Long Service Leave Authority using the telephone number the foreman had provided. He understood that the Authority checked his work at Baulderstone and were satisfied that the work was construction work. The work was similar to his work with CISC, Sutton and Horsley and PBS.

He was asked if he had ever applied to be registered for a long service leave scheme in any of his jobs in the industry. He said the first form he signed with MBA was a registration form although he did not take notice of what he was signing as he was keen to get working again after the break; he did not recall signing any such forms at CISC, PBS or Baulderstone.

He said that he had an induction with PBS and that although he did not recall being given a long service leave document he was given a load of documents to sign and was given a very vague induction at MBA. There was no induction of any sort at CITEA, CISC or Baulderstone. When he was given the papers and told where to sign he said that he honestly was very keen to start working with each of his employers and assumed, as they were training group organizations, they were looking after him. He had not spoken to any other employees about registering for long service leave apart from the Baulderstone general foreman who had told him that it was the employer’s responsibility to register its employees.

He first became aware from his father, who was also in the industry, of being able to claim his long service leave after five years’ service if he had permanently left the industry. He dropped into the long service leave office in Canberra and enquired about how to go about seeking payment for his five years’ service. When they looked up his file it had recorded his work with MBA, PBS and Baulderstone. He was told he was 54 days short for the entitlement. He asked if his employment with CITEA had been recorded and was told that no long service leave was recorded.

Mr Doyle said he then asked how he could get that employment recorded and he was told “it was too long ago as it was longer than 12 months from when I had been registered by MBA.” He asked about getting evidence of his employment with CITEA and was told to get the evidence together with a letter to the Board and the Board could consider recognizing his prior service if satisfied with the evidence.

When asked why he had not enquired about his long service credits when the long service issue with Baulderstone first came up, he said he had no idea that his employment with CISC had not been recorded. At that time, he said he was not considering leaving the industry and did not know about claiming the money if he did leave the industry. He thought from his discussions with the Baulderstone general foreman that it was the employer’s responsibility to register their employees for long service leave.

Mr Doyle described his work at Baulderstone as ‘having good days and bad days’. He was working ten to twelve hour days six days a week at a minimum and he decided to leave as he wanted a work/life balance. He enjoys his current job; he likes the work/life balance and his pay is good. He has no intention of going back to the building industry.

The CISC Employment

Mr Doyle told the Tribunal he worked 5 to 6 days a week, from Monday to Friday or Saturday with CISC. He took construction entitled long weekends such as the Canberra Day long weekend, and the usual leave at Christmas and Easter. He did not take extended leave during this employment.

When the Authority told him that he could provide evidence of his employment that had not been registered, he attended CITEA to obtain a letter from them that he had been employed by CITEA. He learned there that he was paid by CISC. He said he found this both surprising and confusing as he had worn a CITEA shirt and filled out CITEA pay slips. He was also made aware that CISC was no longer trading.

CITEA was able to give him a letter signed by Jason Jennings, a former CEO of CISC, dated 21 August 2012 confirming the commencement and end date of the Applicant’s employment with CISC. When he asked for documents showing details of when he had worked, he was told CITEA did not have access to time sheets but could give him copies of pay slips. No one at the Respondent Authority ever told him that the letter he had provided them from Mr Jennings was not sufficient. He was not asked to obtain any further information.

He said he did not hear from the Respondent Authority for quite some time. He did receive a telephone call from Ms Roncevic, of the ACT Long Service Leave Authority, asking what he was doing in the 12 months prior to lodging the claim and he had said he was not working. He had asked her for a written record of this telephone conversation and had not received it. He said he was not asked to provide any further evidence or information about his work with CISC. He did not receive any information about the decision itself. He could have provided more information about his work with CISC if he had been asked for it.

Once these proceedings had commenced and he learned that the Authority was not happy with the letter he had provided from Mr Jennings, he obtained copies of his PAYG payment summaries. CITEA had said they could not provide any returns or documents stating that he worked on particular days for CISC however, he also obtained a letter from Mr Peter Andersen, the General Manager of CITEA, dated 19 November 2012, which stated his understanding that CISC, a related entity of CITEA, had in the past been the employer for certain employees on behalf of CITEA and that these employees included administration staff and building construction cadets.

In cross examination, the Applicant said he did not recall receiving long service leave certificates every year. His father’s accountant had prepared his 2002/2003 and 2003/2004 tax returns. He agreed that the payment summaries which he had obtained from CITEA after these proceedings commenced showed his employer as CISC but said he had always understood he was a CITEA employee as he wore the CITEA shirt, filled in CITEA timesheets and attended education classes run by CITEA using CITEA teachers. As far as he was aware he was a CITEA employee; he said he honestly did not know about CISC.

Mr Doyle did not believe he had been asked by Ms Roncavic to obtain further evidence from CISC that he had been doing construction work before he commenced the Tribunal proceedings.

After he had filed the application with the Tribunal he became aware that there was an issue about the type of work he had done at CISC, namely whether he had completed construction work as part of his employment there. He also said he was unaware, until at the hearing, that Ms Roncevic had contacted Mr Jennings, Mr Andersen and a Mr Guy and none of them had been prepared to confirm that he had completed construction work. He said he had no issue with the fact that he was doing construction work. When he became aware of this he attended CITEA and spoke with Mr Andersen who confirmed that he was doing work within the Building and Construction Industry. He had obtained a letter dated 19 November 2012 from Mr Andersen stating:

“It was, to my understanding a practice in the past for CISC to be the employer of certain employees on behalf of CITEA. These employees included administration staff and building construction cadets.”

Mr Doyle told the Tribunal that the work he was doing at CISC was the same work he had been doing with MBA which was recognized by the long service leave board. He could see no reason why the board did not recognize his work at CISC or CITEA.

In re-examination, he confirmed that when he became aware that the Authority had issues about the type of work he had done at CISC, he had prepared and signed a statement of the work he had done at CISC which was dated 21 December 2012. This statement was annexed to his Statement of Facts and Contentions. He said, on oath, it was a true and correct statement. It stated that his work at CISC was building and construction work. He reiterated that he had also attended CITEA and obtained the letter from Mr Andersen and annexed that to his Statement of Facts and Contentions.

Ms Roncevic’s evidence

Ms Roncevic told the Tribunal that she was employed as a compliance manager by the ACT Long Service Leave Authority. Her Statement dated 24 January 2013 was marked Exhibit“R1”.

Ms Roncevic said that she had received a letter dated 21 August 2012 from Mr Jason Jennings as part of Mr Doyle’s claim that he had worked at CISC. She telephoned Mr Jennings to find out what kind of work Mr Doyle had performed at CISC as she needed more information.

At that time, Ms Roncevic said that she was aware from a discussion she had had with her neighbour, Mr Gary Guy, (whom she had identified on the CISC website as the CEO of CITEA around 2001/2002) that CISC was the administrative side of CITEA and mainly the people employed there were administrative workers.

Mr Jennings told her that he had moved from CITEA a year before and taken a new position and that she should call Peter Andersen.

Ms Roncevic said that she then telephoned Mr Andersen and told him that she wanted to talk about the Applicant’s case as it was really important to the Authority that Mr Andersen specify that Mr Doyle did construction work. Mr Andersen had told her he was new at the job; he had been there just over a year; he did not know much about CISC and CITEA other than that CISC was part of CITEA and that he could not give her any more information than that.

After that conversation, Ms Roncevic said that she specifically asked Mr Doyle to provide evidence or a letter that the work he had undertaken at CISC was construction industry work. She did not receive any letter.

She told the Tribunal that she was not satisfied after her enquiries with Mr Jennings, Mr Guy and Mr Andersen that the Applicant’s work was construction work. She said she also assumed that as the same people were in charge of CITEA and CISC and as CITEA was registered with the Authority and CISC was never registered, if CISC was part of the construction industry it would have fulfilled its obligations and have been registered with the Authority.

Ms Roncevic said that every financial year the Authority sent certificates to employees stating their long service leave for that particular financial year plus their total registered or credited long service leave. These certificates gave information, options and telephone numbers to call.

When an employer becomes registered with the authority, Ms Roncevic told the Tribunal, the authority sent a standard letter to every employee setting out their rights and notifying them that they are registered. The Authority did not keep copies of every letter sent to each individual registered.

In response to a request from Mr Jones that a copy of this letter be provided to the Tribunal as it had not been annexed to the Statement of Facts and Contentions, Ms Roncevic said she was not able to produce copies of these documents to the Tribunal. The data was sent to a mail house that then sent the certificates. In the past, the authority did not keep copies of the data. They have changed this system this year. She offered to provide a standard template which had been used from inception until this year.

Ms Roncevic explained the process the Respondent adopted if an Applicant, such as Mr Doyle, was seeking recognition of prior service. They required the Applicant to fill in a form and provide evidence such as tax invoices or pay slips showing whom the person worked for. The Authority then contacted the employer to seek verification that the Applicant worked with them and did construction work as defined in the legislation. If the employer was unable to provide this verification, the Authority did not recognize the prior work and did not credit any days worked there.

Ms Roncevic also explained that the Registrar may recognize prior service if satisfied that the Applicant performed work in the construction industry in the 12 months preceding the Applicant’s registration day.

In cross examination, Ms Roncevic confirmed the Authority, as a government authority, was required to keep minutes of all activities undertaken. She said the Authority tried to keep ‘everything’ but there are human errors. She had listed the main points of the conversations she had had in relation to the Applicant’s employment in file notes and they were annexed to her statement which had been filed with the Tribunal.

When it was put to Ms Roncevic, based on her file notes, that there had been an insufficient amount of investigation to clarify Mr Doyle’s situation she said

“We are coming back to the recognition of credits and to the legislation. To me personally, at that point in time, it was not relevant that Mr Doyle perform a construction or administrative work or any kind of work. The legislation prevents me from recognizing any credit service date for four years from the date of registration….in order to recognize any services for 12 months prior to his registration the Registrar would need to be satisfied that Mr Doyle had provided … was doing construction work. ……from our conversation Mr Doyle was on holidays and not working in the industry so that option was gone. In order to recognize four years of service from date of registration the employer would need to verify that Mr Doyle worked, produced a return and made the payments. … Mr Doyle did not satisfy any of those options.”

In response to a question, Ms Roncavic said that the above view is the view of the Registrar, her managers and the board based on their interpretation of section 47 of the legislation.

While agreeing that Mr Jennings was reluctant to assist because he was not working at CISC and Mr Andersen did not know much about CISC, Ms Roncevic did not agree that Mr Doyle’s evidence of his work was the best evidence. She said that such evidence would be self-serving. The Authority had asked the Applicant to provide evidence from anyone that his work was specifically construction. She said that the Authority even suggested that Mr Doyle could have contacted Sutton and Horsley and Mr Doyle said that they were unwilling to recognize that service. Mr Doyle had asked that Mr Goran Josipovic from the Authority contact Mr Andersen as he was happy talk to them. Mr Goran Josipovic, from the Authority had contacted Mr Andersen after the mediation in this matter and he was not willing to comply.

Ms Roncevic reiterated that she did not agree that the Applicant was the best person to give evidence of the nature of his work to the Authority because he had his own interest in the matter.

It was put to Ms Roncevic that as CISC had not registered with the Authority and CITEA had registered she had assumed that a CISC employee was doing administrative work. She replied that she did not assume everyone at CISC was an administrative employee. She repeated that she had spoken to her neighbour, Mr Guy, on a number of occasions including after she had received Mr Doyle’s “Leaving Industry Claim Form”. She specifically asked him about this matter as she had wanted to find out more about CISC and Mr Guy was named as the contact person on the internet.

It was put to her that she did not keep accurate records of the conversations with Mr Guy and that when she was asked to produce the file notes of these conversations she initially said that there was no file note of this conversation and she then said that there would be a hard copy of a file note on her desk or in an email which she could produce at a later time.

When it was, again, put to her in cross examination that there was insufficient consultation with the Applicant about the nature of his prior work, especially given her evidence that the employers, when consulted, were unable to verify details of the Applicant’s employment because they had left CISC or had been at CISC for only a short time and because no CISC records, other than PAYG summaries, existed, Ms Roncevic said that the Applicant’s prior work was not investigated at that time because the legislation did not permit the Authority to recognize it and the nature of his work was not regarded as important by the Authority.
According to Ms Roncavic, it was after the Authority saw that the Applicant’s work might be important that the Authority asked him to provide evidence that specifically stated he performed construction work [at CISC] and he had not provided it. She said the letter from Mr Andersen was a very broad letter and stated that “it is his understanding that CISC employees included administrative staff and building construction cadets.” Nowhere did that letter state that Mr Doyle performed building and construction work.
It was put to Ms Roncavic that Mr Andersen, given he had not been with CITEA when CISC was registered and operating, was not in the best position to provide the information she was seeking. She replied that he said he couldn’t provide this information as he did not know much about CISC and in her opinion ‘as a public servant his integrity is such that he could not make such a statement lightly’.

When it was, again, put to Ms Roncavic that the Applicant was in the best position to give information about his prior employment and he was not consulted before the Board made the decision, Ms Roncavic said she did not really agree because she had spoken to him and told him that he needed to provide the evidence to the authority.

When asked if all employers who have employees doing construction work register with the Authority, Ms Roncavic said she cannot say that every employer registers but most do. This was why there were processes in place to catch those who did not. She was not at the Authority in 2003-2004. She commenced employment there on 14 October 2011. She could not comment about whether or not any action was taken about CISC.

Ms Roncavic reiterated that before the application was considered by the Registrar and again before it was considered by the Board, the Applicant was not requested to provide information about his work because there was no need. This was based on the Authority’s interpretation of the 12 month rule and the 4 year rule in the legislation and this was explained to the Applicant when he came to the office.

When asked if it would have been useful for the Applicant to be involved in the process to address any concerns, Ms Roncavic said she had spoken to him on the telephone after the Registrar had made the decision; the Applicant was not very cooperative; he used rude words and put the phone down on her. When asked if she had a file note of this conversation she said that there was probably one on her desk or on her files.

In re-examination, when asked about the training she had had when she joined the Authority, Ms Roncevic told the Tribunal that Mr Goran Josipovic had given her some training on the legislation and on the system when she started working with the Authority. Her understanding of the legislation was based on the Authority’s interpretation of the Act and how the Act should be applied. If there was any doubt she was able to seek input from the Registrar and, as the Authority’s employees all sit together, they were able to and did discuss the legislation if they were unsure of things in the legislation.

There was a fairly consistent view in the Authority of the way the Act was applied. The interpretation of the legislation applied to Mr Doyle’s application was applied in the same way to all matters that come before the Board.

Consideration

The Application before the Tribunal asks for review of the decision made by the Respondent on 3 October 2012. The Applicant’s application to the Respondent dated 10 September 2012 was for the payment of leave owing to him pursuant to 1.8 of Schedule 1 of LSL Act (subsequently corrected in the proceedings to1.10 of Schedule 1) and was accompanied by the ‘Leaving The Industry Claim Form’ which he had completed and dated 10 September 2012. The Applicant also provided a letter signed by Jason Jennings, CEO of CISC and dated 21 August 2012 certifying the Applicant was employed by CISC from 3 March 2003 to 9 August 2004.

The Respondent rejected the Application. In the letter to the Applicant dated 3 October 2012 the Respondent stated that the original request had been declined on the basis of section 47 of the LSL Act – recognition of prior service for workers who worked in the industry up to four years prior to becoming a registered worker in the Industry. The letter stated that subsection 47(2) required the employer to have given the Authority a return under section 49 and to have paid the levy under section 51. As the Applicant’s employer, CISC, had never been registered as an employer in the industry it did not submit any returns or make the levy payments. Further, as CISC no longer existed, the Respondent determined that it was not possible for subsection 47(2) to be met.

The Respondent also determined that subsection 47(3) did not apply to the Applicant as he had not undertaken construction work in the 12 months prior to his being registered with the Authority on 14 September 2006.

This letter also referred to section 80 of the LSL Act however it is clear that that is a definition section and the Board’s decision could not be made pursuant to that section.

The Respondent contended that it had correctly determined the Applicant’s application for pro rata long service leave pursuant to section 47 of the LSL Act.

The Applicant contended that the Respondent had erroneously applied section 47 of the LSL Act and the Applicant’s application should have been considered by the Registrar pursuant to section 44 of the LSL Act. The Applicant contended that this section was the relevant section as it enabled a Registrar, upon becoming aware of additional information, other than by an application for registration of an employee, to use that additional information to determine that a person is a worker carrying out building and construction work in a covered industry. The Applicant observed that section 44 is silent in relation to its practical application; the LSL Act should be read holistically and interpreted in a way that is beneficial to the Applicant.

The primary issue for determination is the interpretation of the LSL Act as it applied to the Applicant’s application.

Background to the Legislation

The Applicant’s solicitor drew the Tribunal’s attention to the background to the relevant legislation. The Long Service Leave (Building and Construction Industry) Act 1981 (‘the 1981 Act’) recognised the transient nature of the employment of workers in the industry and provided a fund into which credit for workers’ long service leave could be paid.
The Applicant’s solicitor provided the Tribunal with copies of Hansard[4] records of the Parliamentary Debates in 1996 concerning amendments to the 1981 Act. He submitted that the legislation was created to benefit all workers and, in particular, those in the construction industry who are:

“caught up in the troughs and peaks of construction, which we are all aware of, and are also caught up in changes in industry from one employer to another and all the difficulties that go with it….” [5]

[4] Hansard 1996 week 8 pp 2131 – 2132 and 2009 week 10 pp 3532 - 3547

[5] Hansard 1996 page 2132, Mr Berry, lines 15 - 16

Mr Jones referred the Tribunal to parts of the Hansard record of the debate in relation to the 2009 Portable Schemes Bill and highlighted the following statements:

“The very structure of the industries in which we work has changed. But with flexibility has come the danger that some of the hard-won rights of working men and women may be lost. Particularly vulnerable are those in industries where jobs tend to be project based, where there is significant churn or where workplaces are small and career progression means moving from organisation to organisation.” …. “The rationale is simple: those who, by nature of their work, are someone itinerant can count their years of service for a particular industry as a continuum, with each employer paying into a legislated scheme for the duration of the worker’s employment.”[6]
[6] Hansard 2009 pages 3533 – 3534, Mr Stanhope, lines 35-36, lines 1-3 and lines 7-9
and
“…the construction industry portable long service leave scheme was established in recognition of the construction industry being project or development based and the workers really not staying with employers for any great length of time [and], therefore, not being able to access or qualify for long service leave. Workers within the construction industry rightly believed that they required such a scheme that was portable and that was managed on behalf of the employees and the employers.” [7]
and
“…long service leave is a basic provision that all employees must be assured of.”[8]
and
“The objective for the government is to provide the best outcome for all those with an investment in the integrated scheme, employers and workers.”[9]
and
“The most important aspect of these various portability schemes is that they allow vulnerable workers to accrue and access long service leave where they might otherwise have been unable to do so.”[10]

[7] Hansard 2009 page 3537, Ms Porter, lines 9 - 14
[8] Hansard 2009 page 3538, Ms Hunter, lines 14 - 15
[9] Hansard 2009 page 3542, Mr Hargreaves, lines 28 - 30
[10] Hansard 2009 page 3543, Mr Hargreaves, lines 5 - 7

Mr Jones submitted that the LSL Act was beneficial legislation; it was created for the benefit of workers. All of the Applicant’s employers, except CISC, have paid into the fund on his behalf and he should be able to access those funds. He further submitted that simply because his employer had not registered the Applicant and not paid the levy, the Applicant should not be penalized. In any event, the Applicant would agree to the unpaid levies being deducted by the Respondent from his payment.

Mr Jones further submitted that the Respondent’s submissions ignored the reality that a decision based on section 47 of the LSL Act would mean that the Applicant would not be able to access these funds. He conceded that the Applicant would not be entitled to the pro rata long service leave payment he had claimed if it was determined that section 47 was the proper legislative basis for determining the Applicant’s claim. He emphasized such an interpretation of the legislation in this matter totally ignores the rationale for the scheme, as set out in the Hansard excerpts above, being to allow vulnerable workers to accrue and access long service leave.

The Applicant’s case was, essentially, that the Respondent had taken the wrong approach in determining the Applicant’s claim for payment of his long service by relying on section 47 of the LSL Act when the application was made pursuant to 1.10(6). The Tribunal has already found that the Applicant’s letter accompanying the claim clearly identified the legislative basis of his claim and that the resulting decision was a reviewable decision pursuant to item 22 in Schedule 5 of the LSL Act.

Mr Jones submitted that the Applicant had provided sufficient information to the Respondent with his Application to enable the Registrar to exercise the discretion in section 44 of the LSL Act and to be satisfied that the Applicant was a worker in the industry from 3 March 2003 to 9 August 2004.

Mr Jones submitted that the LSL legislation was plagued with insufficient direction and that it did not state that registration day is “D” day[11]. He referred the Tribunal to Division 4.2 (Registration of Workers) of the LSL Act which provided three mechanisms for a worker to become registered.

[11] A day set for beginning something – Random House Webster’s College Dictionary

Section 40 of Division 4.2 enabled an employee or worker to apply to be registered. Section 41 enabled an employer to register an employee. Neither sections 40 and 41 are subject to time limits. The Applicant’s employer no longer existed so section 41 could not be used by the Applicant. He submitted that the legislation is silent on the situation the Applicant found himself in, namely, when the employer no longer exists. The Applicant also gave evidence, which the Tribunal accepts, that he was unaware, until working for Baulderstone, of the obligation imposed on employers in section 41.

The Applicant’s interest was not covered by either sections 40 or 41. This exposed certain inadequacies in the legislation.

The third mechanism was provided by section 44, which was included in the Act when the new Act was created in 2009. This section was enacted to cure the injustices as might be suffered by people such as the Applicant. This section enabled the Registrar to register an employee without an application. It states:

44 Registrar may register employee without application
The registrar may register a person as a worker if—
(a) the registrar becomes aware of information (other than because
of an application under section 40) indicating that a person is,

or was, a worker for a covered industry; and
(b) the registrar is satisfied that the employee should be registered
as a worker for the industry.

The Applicant submitted that the Registrar had, as a result of these proceedings, become aware of information that would enable the Applicant to be registered pursuant to section 44 of the LSL Act for the period of his CISC employment.

In support of this submission, Mr Jones said that the express purpose of the LSL Act is not expressly stated in that Act. While asserting that the Hansard records of the debates go some way to determining the express purpose of the LSL Act, he referred the Tribunal to the key principles of interpretation in the Legislation Act 2001 (“the Legislation Act”), and in particular, sections 138, 139 and 140. They state:

138 Meaning of working out the meaning of an Act—pt 14.2
In this part:
working out the meaning of an Act means—
(a) resolving an ambiguous or obscure provision of the Act; or
(b) confirming or displacing the apparent meaning of the Act; or
(c) finding the meaning of the Act when its apparent meaning
leads to a result that is manifestly absurd or is unreasonable; or
(d) finding the meaning of the Act in any other case.

139 Interpretation best achieving Act’s purpose
(1) In working out the meaning of an Act, the interpretation that would
best achieve the purpose of the Act is to be preferred to any other
interpretation.

(2) This section applies whether or not the Act’s purpose is expressly
stated in the Act.

140 Legislative context
In working out the meaning of an Act, the provisions of the Act
must be read in the context of the Act as a whole.

Applying the above principles of interpretation requires the Tribunal to interpret the LSL Act in the way that will best achieve the purpose of that Act when reading the provisions in the context of the Act as a whole.

Case law

The Respondent tendered and relied on two authorities; Project Blue Sky Inc v Australian Broadcasting Authority [12] in which their Honours McHugh, Gummow, Kirby and Hayne JJ stated: “in determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute.””
and

Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-stock Corp[13] in which the Federal Court stated: “The Rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in the most comprehensive sense, would overrule the former, the particular enactment must be taken to be operative.”
[12] (1998) 194 CLR 355 at [93]

[13] (1980) 29 ALR 333

Mr Jones urged the Tribunal to take into consideration that the LSL Act was created after extensive consultation and a conscious decision was made to insert section 44. The fact that this section or an equivalent section did not exist in prior acts which have been amended is irrelevant. It is an incorrect approach to use prior acts to explain a new act. Section 44 ought to be applied; it obviates the need to apply section 47. The Tribunal should not ignore that the Applicant would have no entitlement to his long service leave under section 47. Such a finding would be entirely unjust; it would go against the intention of the Legislature to provide beneficial legislation. If it was intended that a person in the Applicant’s position would have no rights this would be expressed in the legislation and it is not so expressed. There is no question that the Applicant has an entitlement to be paid.

Ms Holley acknowledged that the long service leave legislation was aimed at protecting the interests of employees and that it should, where appropriate, be interpreted beneficially. However, a beneficial interpretation would still be subject to appropriate limitations as provided for in the LSL Act. She submitted it was appropriate to look at the evolution of these Acts that saw the legislation give specific consideration to the issue of recognition of prior service (‘RPS’) and the circumstances in which this can occur and what provision should be made around prior service.

In the Respondent’s Statement of Facts and Contentions, Ms Holley set out the legislative history and in the Respondent’s submissions of the effect of the legislation on the Applicant. The history and submissions are summarized as follows:-

a. The Applicant was registered as an employee as a result of his application under section 32 of the Long Service Leave (Building and Construction Industry) Act 1981 (“the 1981 Act”) which was then in force. This was the first incarnation of the legislative scheme. At that time the 1981 Act did not contain any section equivalent to:
·section 44 in the LSL Act which allows a registrar to register an employee without a specific application; or
·section 47 in the LSL Act which provides for recognition of prior service.

b.    There was specific provision in section 36 of the 1981 Act to allow for the backdating of when registration takes effect (see subsection 36(7)) and this was the way backdating was approached for all workers.
c.     The Applicant’s registration pursuant to section 36 of the 1981 Act took effect on the first day of his employment in the industry after the prescribed day which was 14 September 2006. The Applicant was not an employee at the prescribed day as he was not employed in the construction industry on the day 12 months prior to his registration. His CISC employment could not be recognised, under the 1981 Act, if he sought recognition of his RPS, as eligible prior service.
d.    In 2007, section 36 of the 1981 Act was amended.[14] The amendments now appearing in sections 36, 36A (service credit and recognition of an employee’s service) and 36B of the 1981 Act changed the previous structure and had the effect that backdating of registration was no longer permitted, and a specific system for RPS, which is the equivalent of section 47 of the LSL Act, was introduced.
e.     The legislative intent [15] in 2007 was to prevent backdating of registration and to impose conditions around when RPS would be recognized and which made the registration date a point fixed in time, i.e. the date the Registrar receives the application for registration.
f.      It was intentional that RPS was only able to be recognized in accordance with the conditions set out in the legislation.
[14] Long Service Leave (Building and Construction and Contract Cleaning Industries) Legislation Amendment Act 2007 clause 10
[15]   See Explanatory Memorandum to the Amendment Bill in relation to clause 10 (section 36).

Ms Holley conceded that there is room for some dispute as to the interpretation of section 44 – however the plain English interpretation would be that either the employer or employee provides information about an employee and if neither has applied for registration, then a registrar can recognize that prior service without receiving an application for registration. She submitted that the preferable interpretation is that section 44 allows only for contemporaneous registration of otherwise unregistered people where the requirements of section 44 are met and, once a person is registered as a worker and a registration date is fixed, prior service can only be credited in accordance with section 47 of the LSL Act.
Ms Holley submitted that the LSL Act should be interpreted in accordance with the above provisions in the Legislation Act and a reading of the LSL Act supports the findings of an intention to fix the registration date at a point in time and an intention that prior service only be recognised by applying the specific provision in the LSL Act to that effect, namely section 47.
Ms Holley also submitted that none of these provisions should allow the Registrar to change or backdate a fixed registration date as to do so would be contrary to the specific legislative intention of the 2007 amendments.
Ms Holley explained the Respondent’s position which gave rise to the decision letter dated 3 October 2012. On behalf of the Respondent, she submitted that section 47 is the only provision in the LSL Act which allows for RPS; therefore the Applicant has to meet the requirements of section 47 of the LSL Act for his prior service with CISC to be credited. Although the period of employment with CISC was within the four year period prior to his registration date, CISC had not lodged returns or paid levies as required by subsection 47(2) of the LSL Act. As CISC is no longer a registered company, the Respondent submitted it is now not possible for such returns to be submitted or payments to be made and, therefore, subsection 47(2) does not apply.

Ms Holley also submitted, on behalf of the Respondent that subsection 47(3) is not available to the Applicant as he ceased his CISC employment on 9 August 2004 which was more than 12 months before his registration with the Respondent on 14 September 2006.

Finally Ms Holley submitted, even if the Tribunal accepted the Applicant’s submission that the Respondent need not have regard to section 47 as section 44 allows the Registrar to backdate the date of registration to the start of the Applicant’s employment with CISC such a power would be discretionary. Section 80 and Schedule 5 of the LSL Act do not refer to discretionary decisions in the definition of a reviewable decision. Therefore, she submitted that the Tribunal would not have jurisdiction to review a decision made under section 44 of the LSL Act.
Ms Holley acknowledged the Applicant’s frustration when he is 54 days short of the 1,100 days of service needed to receive his long service leave but submitted that there is clear legislative intent to impose conditions as to how RPS should be recognised, and they are not met here and section 44 should not be read to allow a workaround of what has been specified in the legislation. To allow the Applicant’s interpretation of and application of the legislation, while not significant in this matter in terms of dollars and cents, would open the flood gates and undermine the intention of section 47 of the LSL Act.

Mr Jones argued that it is irrelevant to consider the fact that the 1981 Act did not have a specific equivalent to section 44 of the LSL Act. The insertion of section 44 shows a specific intention to ensure that there is not the injustice that would result from the interpretation of the legislation suggested by the Respondent.

He also submitted, while there is a specific provision, namely section 47 of the LSL Act, this section does not prevent the decision maker considering section 44 of the LSL Act. He further submitted as follows: Section 44 operates in complete harmony with the whole of the LSL Act and that this section provides discretion to remedy an injustice and will not open the flood gates. It is making the decision maker exercise its discretion to remedy the injustice. The discretion will be exercised in accordance with the test in section 44 of the LSL Act. Rights which accrued under the 1981 Act continue to apply and accrue under the LSL Act. They were never extinguished. The interpretation urged upon the Tribunal by the Respondent is too narrow and not in keeping with the spirit of the legislation.

Mr Jones urged the Tribunal to find that the Respondent should have exercised its discretion under section 44 of the LSL Act and not proceeded to determine the Applicant’s application under section 47 of that Act. If the Respondent had exercised its discretion pursuant to section 44 it would have found that 333 days should be added to the 1046 days on the Respondent’s register. This is a significant amount of days; the Applicant has worked those days and he is entitled to include them.

Conclusion

In considering each party’s contentions the Tribunal was not satisfied that the approach adopted by the Respondent, by deciding the Applicant’s claim pursuant to section 47 of the LSL Act, was the correct interpretation and application of the LSL Act. The Tribunal will return to the Respondent’s process below. It appeared from the matters before the Tribunal that the Respondent did not give any or any proper consideration to section 44 of the LSL Act.

The Tribunal is satisfied that the LSL Act is, indeed, beneficial legislation. The Hansard excerpts quoted above show a conscious decision by legislators to assist workers in a transient industry to be able to count their years of service as a continuum and to get access to long service leave entitlements as a primary stakeholder. The Tribunal is satisfied that rights accrued under the 1981 Act and carried forward to the current LSL Act were not intended to be extinguished. Section 44 of the LSL Act signaled a clear intention to give the Respondent the discretion to remedy an injustice. This is in keeping with the spirit of the legislation.

The Tribunal cannot ignore the 2009 statements of Mr Hargreaves set out in paragraph 92 above to both the objective for the government and that the portability scheme allows vulnerable workers to accrue and access long service leave.

The Tribunal is satisfied that the terms of section 44 of the LSL Act are clear and unequivocal. There is no ambiguity in this section. The Tribunal is not satisfied that this section is limited to contemporaneous registration of otherwise unregistered people.

Section 44 was available to the Registrar and to the Board when considering the Applicant’s claim for pro rata long service leave. The Tribunal noted that a decision under section 44, being a discretionary decision, is not reviewable. The Tribunal is satisfied from all of the matters before it that Section 44 was not considered at all by the Respondent. Doing the best it can with the Respondent’s Determination it appears that, upon receiving the Application from the Applicant, the Respondent concluded that prior service was involved and then only considered section 47. There is no mention at all in the Determination of section 44 being considered.

Section 44 gave the Registrar a discretion to register a person, such as the Applicant, if the Registrar became aware of further information indicating the person is or was a worker for a covered industry and the Registrar is satisfied that that person should be registered as a worker for the industry. The Tribunal is satisfied that the Respondent should have had available to it sufficient information to enable the Registrar to exercise that discretion, and as a result of this application to the Tribunal now has sufficient information.

The Tribunal does not accept the Respondent’s submission that if the Registrar is satisfied that the requirements of section 44 are met and a person is registered and a registration date is fixed, then prior service can only be considered and credited under section 47.

The Tribunal is satisfied that section 44 operates in harmony with section 47.

It was not clear to the Tribunal why the Respondent did not, in the unusual circumstances of the Applicant’s situation, request the Applicant to provide his own statement. Here his employer no longer existed, the employer’s records, other than PAYG Summaries, were no longer available, the former General Manager had left CISC sometime before the request was made and was only
able to confirm the Applicant’s commencement and end dates. The CITEA General Manager had recently been appointed to the position and did not have access to the information either.
The Tribunal would have thought, at a minimum, a relevant question to be asked of the Applicant after it received Mr Andersen’s letter was whether he was a building cadet or an administrative employee at CISC. The Tribunal was concerned that the only investigation undertaken in the Applicant’s matter was telephoning Mr Jennings and Mr Andersen, neither of whom were reasonably in a position to provide the very evidence the Respondent was seeking.
The Respondent’s concern about the Applicant’s statement being self-serving could have readily been reasonably and satisfactorily met by requesting that the Applicant furnish a statutory declaration setting out the nature of the work he had undertaken while employed by CISC. He has now given this evidence on oath. His evidence was not challenged.

Ms Roncevic described the way the Respondent applied the legislation as once the issue of prior service was identified the Respondent “followed a process”. This involved verifying employment details and unless the employer was able to verify the employee’s work history the employee’s claim would fail under section 47 of the LSL Act. There was no satisfactory evidence of the process which the Respondent used for situations where the employer had ceased to exist and no one was able to provide any relevant information about an employee’s work.

This was the case here. The Respondent determined, unreasonably, not to seek any information from the Applicant which could have addressed their concerns. Instead, it appears that Ms Roncevic may have asked the Applicant to obtain further information himself at a time when their relationship had deteriorated with the Applicant, allegedly, hanging up the telephone. The “process” ended there and resulted in the Applicant’s claim being rejected prematurely.
Mr Jones pointed out that the Respondent’s “process” should not be accepted by the Tribunal as evidence of what the LSL Act requires; it was evidence only of the process the Respondent was using and its interpretation of the LSL Act. The Tribunal concurs.

Notwithstanding Ms Roncevic’s evidence that the Applicant was rude to her in a telephone call and had hung up on her, the Tribunal found the Applicant to be a truthful witness. His evidence of the type of work he did at CISC was not challenged.

It was clear to the Tribunal from the evidence that the Applicant was a worker, working in the construction industry as a building cadet, employed by CISC and he could have and should have been registered by CISC under the relevant legislation. Had this occurred, the Applicant would not have been in his present situation. In this regard, the Tribunal also notes that section 40 does not impose time limits on employees or workers applying for registration and section 41 does not impose time limits on employers registering employees. There is no mention of time limits in section 44.

Notwithstanding the strict liability provisions in the legislation for dealing with employers who did not register with the Respondent, there was no evidence which would enable the Tribunal to determine whether or not such had been taken. Had such action been taken it is again possible that the Applicant would not have been in his present situation.

Decision

For the reasons stated above, the Tribunal is satisfied that the Registrar should have considered section 44 of the LSL Act and not section 47 of the LSL Act when determining the Application made pursuant to section 1.10 of Schedule 1 of the LSL Act.
The Tribunal is also satisfied that the Registrar should have, pursuant to section 44 of the LSL Act, backdated the Applicant’s registration to 3 March 2003 without the need to credit prior service.
The Tribunal orders will provide that the Respondent pay the Applicant his pro-rata long service leave less any levies unpaid by CISC.

………………………………..
Ms E. Symons

Presidential Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A

FILE NUMBER:	AT 12/80
PARTIES, APPLICANT:	Matthew Doyle
PARTIES, RESPONDENT:	ACT Long Service Leave Authority
COUNSEL APPEARING, APPLICANT
COUNSEL APPEARING, RESPONDENT
SOLICITORS FOR APPLICANT	ACT Government Solicitor
SOLICITORS FOR RESPONDENT	Moray & Agnew
TRIBUNAL MEMBERS:	Ms E Symons, Presidential Member
DATES OF HEARING:	8 February 2013
PLACE OF HEARING:	Canberra

PART B

RECOMMENDATION:

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

COMMENTS: