Flinders Ports Pty Ltd v Woolford

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SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

FLINDERS PORTS PTY LTD v WOOLFORD

[2015] SASCFC 6

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Stanley)

22 January 2015

INDUSTRIAL LAW - SOUTH AUSTRALIA - REGULATION OF PARTICULAR MATTERS UNDER PARTICULAR LEGISLATION - LONG SERVICE LEAVE - ENTITLEMENT TO LEAVE - CONTINUITY OF SERVICE

INDUSTRIAL LAW - SOUTH AUSTRALIA - REGULATION OF PARTICULAR MATTERS UNDER PARTICULAR LEGISLATION - LONG SERVICE LEAVE - PAYMENT IN LIEU OF LONG SERVICE LEAVE - GENERALLY

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL

Appeal by permission from the Full Court of the Industrial Relations Court.

The respondent claimed an entitlement to payment in lieu of long service leave pursuant to the provisions of the Long Service Leave Act 1987 (SA).

The respondent claimed the entitlement on the basis he had worked for the appellant and related employers within the meaning of s 3(3) of the Long Service Leave Act for over 20 years.

The respondent was employed as a casual employee to perform mooring, deckhand and maintenance duties in Port Lincoln Harbour.  He was originally employed by the Department of Marine and Harbours and later by the Ports Corporation which was the successor to the department’s business operations in Port Lincoln, and finally by the appellant as the successor to the business of the Ports Corporation in Port Lincoln.

The respondent’s claim was allowed by an industrial magistrate.  An appeal to the Full Court of the Industrial Relations Court from that judgment was dismissed. 

Subsequent to the granting of permission to appeal to this Court, the respondent died.  The judgment survives for the benefit of the respondent’s estate subject to this appeal. The Court substituted the respondent’s personal representative as the relevant party to the appeal. 

Whether the respondent had a qualifying period of service for the purpose of accruing a long service leave entitlement.  Whether the deceased was on unpaid leave for a period between 2008 and 2011 when he was in receipt of workers’ compensation.  What was the relevant date of termination of the deceased’s service.

Held per Stanley J (Kelly J agreeing) allowing the appeal:

1. The deceased’s absence from work as a result of a work-related injury cannot be characterised as unpaid leave for the purposes of the Long Service Leave Act 1987 (SA) (at [30], [105] - [108]).

Held per Stanley J (Kourakis CJ and Kelly J agreeing):

2. Continuous service as defined in the Long Service Leave Act 1987 (SA) means uninterrupted or unbroken service subject to the exceptions in s 6(1) of the Act. If the service rendered by a worker is intermittent, sporadic or irregular it can only satisfy the test of “continuous service” if the breaks between service fall within the terms of s 6(1) of the Act (at [2], [32], [76]).

Held per Stanley J:

3.  The deceased worked pursuant to a continuing contractual obligation to make…

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Details
Case
[2015] SASCFC 6
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal to the Full Court of the Industrial Relations Court of South Australia concerning an entitlement to long service leave. The appeal was brought by Flinders Ports Pty Ltd (the appellant) against the personal representative of the deceased, Mr Woolford (the respondent), who had been employed as a casual worker. The dispute centred on whether Mr Woolford had accrued a sufficient period of continuous service to be entitled to payment in lieu of long service leave upon the termination of his employment.

The primary legal issues before the Court were whether Mr Woolford's employment constituted continuous service for the purposes of the *Long Service Leave Act 1987* (SA), and whether the Industrial Relations Court retained jurisdiction to make an order for payment in lieu of long service leave, given the timing of the application relative to the termination of employment. Specifically, the Court had to determine the effective date of termination of Mr Woolford's employment and consider the impact of section 13(4) of the Act, which imposes a time limit for making such applications.

The Court considered whether Mr Woolford's employment was governed by a series of ad hoc contracts or a single, overarching contract of service. It was held that Mr Woolford's employment was characterised by a single contract of service, which was lawfully terminated by notice on 23 September 2011. This conclusion was significant as it meant the three-year time limit under section 13(4) of the Act did not bar the claim, as the application was made within that period from the effective termination date. The Court also determined that a period of absence due to illness did not break the continuity of service for long service leave purposes.

The appeal was ultimately allowed. The Court found that while Mr Woolford was entitled to payment in lieu of long service leave, the calculation of this entitlement, given the limited work performed in the period immediately preceding the termination, resulted in a negligible sum. The order of the Industrial Relations Court was set aside, and the matter was remitted for recalculation of the entitlement in accordance with the Court's reasons.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Subsequent to the granting of permission to appeal to this Court, the respondent died. The judgment survives for the benefit of the respondent’s estate subject to this appeal. The Court substituted the respondent’s personal representative as the relevant party to the appeal. The facts The deceased was employed on a casual basis in accordance with the policy of his then employer to casualise its workforce by replacing permanent fulltime employees with casual staff to perform its core activities. The deceased worked from 16 October 1990 until he ceased work due to a work-related injury on 10 October 2008, with the exception of a calendar period of 83 days when he was absent from work due to a serious illness. The nature of the work performed by the deceased is described in the reasons of the learned industrial magistrate as follows:[5]Mr Woolford was one of a number of casual employees who could be called upon to assist with various shipping movements and to a lesser degree maintenance tasks. In 2001 a written roster system was introduced for the allocation of jobs to casuals within the pool on a rotational, and what was considered to be a fair basis as between the casuals. Prior to then there was some favouritism in the allocation of jobs as between the available pool members. The extent of work offered to Mr Woolford depended upon shipping demands in Port Lincoln. Most shipping was in relation to the export of grain, but bulk fertiliser and fuel were also delivered by cargo ships. The shifts that Mr Woolford performed varied in length from one and a half hours up to a full day’s work. There were occasions when multiple shifts were worked on one day, for example, for mooring and later releasing a ship. On some occasions a full day’s work plus a call out for mooring duties was performed.[5] Woolford v Flinders Ports Pty Ltd [2012] SAIRC 58 at [7] – [9]. At trial there was a dispute between the parties as to the number of hours and days worked by the deceased prior to December 1997. Apart from recording the fact of the dispute, the learned industrial magistrate made no finding as to the frequency of the work performed by the deceased prior to December 1997. It appears that the learned magistrate accepted that from 1998 until October 2008 the deceased worked somewhere between 20 and 60 hours per fortnight, depending on shipping demands in Port Lincoln. By reason of a work-related injury, the deceased did not work after 10 October 2008. His employment was formally terminated by the employer on 23 September 2011. His employment was terminated in accordance with the provisions of s 58C of the Workers Rehabilitation and Compensation Act 1986 (SA). The learned industrial magistrate found the deceased was always ready, willing and able to be called out for work at any hour of the day including weekends. He only declined one offer of work for any reason other than illness throughout the period in question. He did not know when he would next be offered work, even with knowledge of his position on the roster, due to the unpredictable nature of shipping movements. He would generally only get one day’s notice of a work engagement or notice on a Friday for weekend work. He did not have to undergo a site induction, training or safety briefing at the start of every engagement. When work was offered, he did not know for how long the engagement would last, although he could generally make a close estimate based on past experience and knowledge of the nature of the mooring, pilot or maintenance duty to be performed. He had a reasonable expectation that he would be offered similar engagements to perform his employer’s ongoing mooring work although the employer was under no legal obligation to offer any shifts, nor did he have any legal obligation to accept any offer of work. The learned magistrate accepted, however, that if the deceased refused an offer for reasons other than illness, it would “not have gone down too well” and from the time the roster was in use his name would have been put to the bottom.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The obligation to pay long service leave to a casual employee, pursuant to s 8(4)(b) of the LSL Act “immediately on termination” is not an obligation which arises at the end of any one of the series of contracts of employment after the prescribed period of ten years has been accumulated. Casual employees do not have the right, and are not subject to an obligation, to take their long service leave as a lump sum during the continuity of their period of service, but they are entitled to take a period of paid long service leave. The deceased’s employment was not terminated for the purpose of the LSL Act when the last of the series of contracts he worked came to an end. Rather the deceased’s service only came to an end when he and the appellant agreed that no further contracts would be entered into.Conclusion I would dismiss the appeal. KELLY J: I agree for the reasons given by Stanley J that the period during which the deceased was absent from work was not a period of unpaid leave within the meaning of s 3(4)(b) of the Long Service Leave Act 1987 (SA) (“LSL Act”). On the reasoning of either Kourakis CJ or Stanley J, the relevant date for the purposes of ss 5(2) and 8(4) of LSL Act is 23 September 2011, although I acknowledge that this conclusion is reached by different routes. I agree with Kourakis CJ and Stanley J that the deceased rendered continuous service. However, I find it unnecessary to determine whether that service was pursuant to a single contract or a series of contracts and, in my view, given the course of the litigation in the Courts below, it is undesirable to do so. I would allow the appeal and agree with the orders of Stanley J.STANLEY J:Introduction This is an appeal by permission from the Full Court of the Industrial Relations Court pursuant to s 191 of the Fair Work Act 1994 (SA). The respondent claimed an entitlement to payment in lieu of long service leave pursuant to the provisions of the Long Service Leave Act 1987 (SA) (the LSL Act). The respondent claimed the entitlement on the basis he had worked for the appellant and related employers within the meaning of s 3(3) of the LSL Act for over 20 years between 16 October 1990 and the termination of his employment on 23 September 2011. The respondent was employed as a casual employee to perform mooring, deckhand and maintenance duties in Port Lincoln Harbour. He was originally employed by the Department of Marine and Harbours and later by the Ports Corporation which was the successor to the department’s business operations in Port Lincoln, and finally by the appellant as the successor to the business of the Ports Corporation in Port Lincoln. The respondent’s claim was allowed by an industrial magistrate. An appeal to the Full Court of the Industrial Relations Court from that judgment was dismissed. Subsequent to the granting of permission to appeal to this Court, the respondent died. The judgment survives for the benefit of the respondent’s estate subject to this appeal. The Court substituted the respondent’s personal representative as the relevant party to the appeal. The facts

Ratio Decidendi

Legal Principle Established

I do not accept the appellant’s submission. It is founded on an incorrect premise, namely, that the deceased worked pursuant to a series of ad hoc contracts. For the reasons already explained, that was not the case. There was a single contract of service which was terminated lawfully by the giving of notice to the deceased. At common law a valid notice of termination brings the contract of employment to an end when the contract expires.[53] The notice was effective on 23 September 2011. That is when the entitlement to payment in lieu of long service leave, such as it is, arose.Was the Court deprived of jurisdiction to make an order for payment in lieu of long service leave by reason of the operation of s 13(4) of the Long Service Leave Act 1987 (SA)?[53] Grout v Gunnedah Shire Council (No. 2) (1994) 57 IR 243; Hill v CA Parsons & Co Ltd [1972] Ch 305 at 313 – 314; Griggs v Noris Group of Companies [2006] SASC 23 at [60], (2006) 94 SASR 126 at 146. Section 13 confers power on the Industrial Relations Court to order an employer (or former employer) of a worker to grant long service leave or make payment in lieu of leave to a worker.[54] Section 13(4) provides that an order cannot be made if the service of the worker was terminated more than three years before the date of the application. [54] The Court is also empowered to order payment in lieu of long service leave to the personal representative of a deceased worker. The appellant submits that the Court lacked jurisdiction to make the order by reason of s 13(4) because the deceased’s employment was terminated more than three years before the date of the application. As I have noted, the deceased made a claim for payment in lieu of long service leave on 7 May 2012. The appellant’s submission is predicated upon the proposition that the deceased’s service was terminated on 10 October 2008. Given my conclusion that the deceased’s employment was terminated with effect on 23 September 2011, s 13(4) does not operate to deprive the Industrial Relations Court of the power to make the order. Conclusion For the reasons set out above, I am of the view that the deceased was entitled to a payment in lieu of long service leave upon the termination of his employment on 23 September 2011. However, in the unusual circumstances that obtain in this case, where the deceased did not work for almost all of the three years immediately preceding his entitlement to payment in lieu of long service leave arising, the calculation of that entitlement pursuant to s 3(2) is in a negligible sum. This is an unfortunate result. I consider it deserves the attention of the Parliament. I would allow the appeal. I would set aside the order made by the learned industrial magistrate. I would remit the matter to the learned industrial magistrate for the purposes of making an order after calculating the entitlement to payment in lieu of long service leave in conformity with these reasons.