Georges v Elders Rural Services Australia Limited
[2023] FedCFamC2G 988
•1 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Georges v Elders Rural Services Australia Limited [2023] FedCFamC2G 988
File number(s): DNG 13 of 2023 Judgment of: JUDGE VASTA Date of judgment: 1 November 2023 Catchwords: INDUSTRIAL LAW – Statutory interpretation – “attain the age at which a person may retire” – preservation age – aged pension age - legislative intention Legislation: Long Service Leave Act 1981 (NT): ss.10(2), 10(2)(a), 10(2)(c) Division: Division 2 General Federal Law Number of paragraphs: 49 Date of last submission/s: 11 July 2023 Date of hearing: In Chambers on the papers Place: Brisbane Counsel for the Applicant: The Applicant appearing on her own behalf Solicitor for the Respondent: Lander & Rogers ORDERS
DNG 13 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MARIA GEORGES
Applicant
AND: ELDERS RURAL SERVICES AUSTRALIA LIMITED ABN 72 004 045 121
Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
1 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application filed on 4 May 2023 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE VASTA
INTRODUCTION
On 4 May 2023, the applicant, Maria Georges, filed an application in this Court seeking that the respondent, Elders Rural Services Australia Ltd, pay her a pro rata sum of money for long service leave. This matter is to be solely determined upon the statutory interpretation of the Long Service Leave Act 1981 (NT) (“LSL Act”).
The matter came before Registrar Lynch on 13 June 2023. The registrar ordered the parties to file and serve outlines of submissions and transferred the matter to me. I had the matter administratively listed for a directions hearing on 9 October 2023.
On 3 October 2023, I made orders, in Chambers, by consent, that the directions hearing be vacated and that the matter be determined on the papers on the basis of the material that had already been filed (which included the outlines of submissions ordered by the registrar).
There is no factual dispute in the matter. In the end, if I come to the conclusion that the interpretation sought by the applicant is correct, it means that the respondent must pay her the sum of $19,707.36. However, if I find that the interpretation is as the respondent claims, then the respondent owes the applicant nothing.
Background
The applicant is a female who was (apparently) born in August 1962. It would seem that the applicant lived in Sydney until January 2002 before moving to Darwin where she began to work in the real estate industry.
The applicant joined the respondent’s real estate business in November 2015. She submitted that she worked tirelessly for the respondent and achieved great results. She “retired” from the respondent in March 2023.
On 14 March 2023, the applicant gave to the respondent a letter of resignation which read as follows:
Hi David,
I would like to advise you that I have decided to retire and thus will be ceasing my employment with Elders.
I have enjoyed working with the company and staff over the last seven years, however feel that the time has come to take a step back and spend more time with my family as well as focus on my health and well-being.
I thank you and the Elders team for the support over the last seven years and I am sad that I will be leaving my second family.
Could you please ensure that I am paid for all my entitlements including the following items that I brought to your attention on the 2nd of February and also on the 7th of February, 2023:
•Payment of 7 plus years long service including the additional superannuation benefit attached to this payment plus interest
•Payment of the $5,000 referral fee I was entitled to for referring a new staff member, Leanne White to the business
•20% commission payable upon the sale of 31 Phoenix Street, Nightcliff
•Commission payable upon settlement of any remaining listings with Elders.
I thank you one again for your support throughout the time I have spent working with you and the team and I will certainly miss you.
Yours faithfully,
Maria Georges
The respondent did not pay the pro rata long service leave claim. The applicant provided the respondent with a letter from an industrial relations consultancy dated 27 March 2023. In that letter, the consultancy submitted that, because the applicant had reached the “preservation age” whereby she could obtain her superannuation, she had “retired” and had, therefore, achieved the prerequisite for the payment of pro rata long service leave entitlements.
The consultancy said that they would take the matter to the Northern Territory Civil and Administrative Tribunal (“NTCAT”) where they believed that they would be successful in attaining a ruling in accordance with their interpretation.
The respondent made representations that they had advice from the Northern Territory public service as to the proper interpretation. This interpretation was that the age at which one can retire refers to when a person qualifies for the age pension.
The Legislation
The LSL sets out, at s. 10(2), the legislative framework for the pro rata payment of long service leave. It reads:
Where an employee whose period of employment is less than 10 years but not less than 7 years ceases to be an employee of that employer, otherwise than by death:
(a) on or subsequent to attaining the age at which he or she may retire;
(b) on the termination of employment by the employer for a reason other than serious misconduct; or
(c) on account of illness, incapacity or domestic or other pressing necessity of such a nature as to justify so ceasing to be an employee,
the employer shall pay to the employee the amount payable under section 11 for a period equal to 1.3 weeks for each completed year of service of that employment.
As previously noted, there is no argument that, if the prerequisites have been met, the amount payable to the applicant is $19,707.36. The argument is whether the applicant has “attained the age at which she may retire”.
Retirement age
The applicant adopted the words used in the consultancy letter and submitted that she had turned 60 in August 2022 and had worked for over seven continuous years of completed employment with the respondent. She submitted that her last day of employment with the respondent was Friday, 17 March 2023 whereby she retired from the workforce. She said that, as a superannuant, she had reached the preservation age whereby she could obtain her superannuation and furthermore she had retired at law and is living off her superannuation and she is no longer in the workforce.
The applicant submits that there are two “ages” that are relevant to decide whether she has reached “the age at which she may retire”.
The first is “preservation age”. This is the age at which she is able to access her superannuation. The Australian Taxation Office (“ATO”) has determined that a person born between 1 July 1962 and 30 June 1963 has a preservation age of 58.
The second is “age pension age”. This is the age at which the applicant would be entitled to receive Australia’s age pension. As the applicant was born after 1 January 1957, the age at which she could access the age pension is when she attains the age of 67.
Interpretation
In deciding how to interpret legislation, a Court looks at the “rules” of statutory interpretation. The most obvious rule is the “literal rule”, which means that one interprets the words using their ordinary meaning. The “mischief rule” allows a Court to look at what “mischief” the legislature was attempting to combat by the enactment of the statute. The “absurdity rule” allows a Court to not adopt an interpretation which would lead to an absurd result.
In this case, it is clear that, when the Parliament enacted this legislation in 1981, there was no such thing as superannuation. Retirement age was the age at which one was eligible for the pension. In 1981, persons remained in employment until that age. Once persons reached that age, they no longer “worked for a living”. The vast majority of businesses did not employ anyone once they reached the age at which they were eligible for the aged pension.
This changed with the advent of compulsory superannuation and compulsory employer contributions to superannuation. Superannuation was always a scheme whereby persons could leave the workforce and be able to support themselves, rather than rely upon government benefits. Society itself changed and persons were not made to compulsorily retire. The industrial landscape now, is quite different to the way it was in 1981.
The interpretation favoured by the applicant is that the current state of Australian society (having lived with compulsory superannuation for a generation) would recognise that someone living off their superannuation entitlements, is now “retired”. For this reason, the applicant argues that a person may retire when they have reached the “preservation age”.
Whilst this interpretation may be attractive, it does not take into account that the attaining of the preservation age does not mean the end of a person’s working life. It is possible to access superannuation and yet still continue some form of paid employment. Realistically, any person at any time can declare that they are “retired”. However, that does not mean that a person can, subjectively, decide when they have “attained the age at which they may retire”.
Long service leave has always been known to become available after a person has worked for an employer for a period of 10 years. The legislation recognises that there are a certain class of persons who should be able to access a pro rata payment of long service leave if they have ceased employment with an employer, notwithstanding that they had not worked for 10 years in continuous service to the employer.
These exceptions to the normal rule are for persons who have been terminated by the employer, have a personal reason for needing to cease work or have reached the age of which they can retire. The common theme in these “exceptions” is that the employment has ceased through no fault of the employee.
If a person reached “retirement age” in 1981, they, almost invariably, no longer worked. This meant that their continuous service to the employer would have continued but for the fact that their age interrupted that service. The same applies to persons whose position was terminated, and, also, for persons who had some personal crisis that meant that they could no longer work.
The applicant submits that a person who can legally access their superannuation entitlements should also come into the “exceptions” as a person to whom an employer owes a pro rata long service leave benefits, despite such a person ceasing to be an employee solely because they, of their own volition, decide that they no longer wish to remain employed.
Such an interpretation is not in keeping with the tenor of the reason for the existence of this particular section. It may even be viewed by some as leading to an “absurdity”. I do not need to go that far in looking at what is the proper interpretation of this particular statute.
How should s. 10(2)(a) be interpreted?
It seems to me that, consistent with the “literal” and the “mischief” rules of statutory interpretation, the age “at which a person may retire” should be interpreted as being the age at which they are eligible for the age pension. At the time that the applicant ceased being an employee, that age was 67. The applicant had not reached, or attained, that age.
Consistent with that interpretation, I find that there was no obligation by the respondent to pay the applicant a pro rata sum for long service leave entitlements pursuant to s. 10(2)(a).
New claims by the applicant
When the applicant filed her outline of submissions, she presented an argument that had not been raised in her application. Her application was solely that she was entitled to the pro rata payment because she is a person who had attained the age at which she may retire.
In her written submissions, however, the applicant makes a claim that s. 10(2)(c) also is applicable to her case. That sub-subsection refers to persons who “on account of illness, incapacity or domestic or other pressing necessity of such a nature as to justify so ceasing to be an employee”, also being able to be part of the “exceptions” of which I’ve earlier spoken.
The applicant claimed, in her submissions, that she had worked tirelessly as a real estate agent since 2002 and with the respondent since November 2015. She said that she had been devoted to the company and put her heart and soul into working hard. She said she had had a very successful year in 2022 and her line manager had congratulated her.
She said that her mother passed away from Alzheimer’s in February 2022 and her daughter gave birth to her second child by caesarean section in March 2022. The applicant said that she was under a lot of pressure as a consequence of those two life events. She said that she assisted her daughter with the new baby and also took her annual leave and went overseas for six weeks. She said that when she returned, her daughter required assistance with her baby and that she, the applicant, was trying to juggle babysitting with her real estate career. She said she found this difficult.
The applicant said that her earnings dropped because of this, and her branch manager was not happy and counselled her in January 2023. She said that she felt very humiliated and demoralised after all the years in which she had provided great results for the respondent.
The applicant said that it was her efforts that caused the respondent to win a national award as the number one growth office in the nation. She stated that it was her efforts, as well, that caused her branch office to be ranked as the number one branch of the year for the Northern Territory and Queensland. The applicant said that it was her efforts, as well, that caused her branch office to be ranked the number one office in staff survey effectiveness in Northern Territory and Queensland.
She said that throughout her seven years and four months as an employee, she always put her clients, and the demands of her position with the respondent, first. She said that her mother had battled Alzheimer’s in a nursing home. She said that her daughter had given birth to her first child in 2017 which was also a difficult birth. She said that her daughter was ill and required heart surgery in Sydney when the baby was 12 months old. She said that her father died in 2018. She said that her daughter’s second baby was born in March 2022.
The applicant said that “despite all this trauma, I still performed my duties for this corporate company and was even expected to list property 2 days after my father passed away and also when my mother passed away”. The applicant went on to say “perhaps I was burnt out when I decided to retire, however I retired in good faith for all intents and purposes and have been looking after my grandchildren ever since”.
The applicant submitted that this means that she falls within the category of s. 10(2)(c).
Discussion
Whilst, I have great sympathy for the applicant, I cannot accept that these new submissions justify the applicant being categorised under s.10(2)(c). There are many problems with these submissions.
It is clear that this aspect of her claim had not been made until she filed the submissions in late June 2023; they were not raised in any material before the submissions were filed.
The applicant stated, in her resignation letter, that she “would like to spend more time with her family and focus on her health and well-being” but did not ever state that this was a “domestic, or other pressing, necessity that justified her ceasing to be an employee”. None of those circumstances, about which I’ve just referred, were ever mentioned as being the reason for the applicant ceasing employment, nor did the applicant ever claim that these circumstances “necessitated” her ceasing employment.
The letter sent by the industrial relations consultancy made no mention of those circumstances when trying to justify the pro rata payment. In fact, the letter referred only to the attaining of the age at which the applicant may retire.
But, putting those issues aside, as I must, the question for me is whether those circumstances necessitated the applicant ceasing employment. An unfortunate fact of life is that every person will go through similar crises during their existence on this Earth. Most persons will lose either one of their parents during their lifetimes. For the great majority of persons, this will occur during their working life.
Similarly, raising children is not an easy task, but it is part of life for the majority of persons who are in the workforce. Assisting children, who are raising their own children, is also part of life. It brings with it many challenges and many stresses. It also brings many joys.
While not wishing to belittle these occurrences in the life of the applicant, they are not so exceptional as to necessitate her ceasing employment. If they had been in that category, it would have been expected that the applicant would have spoken to her employer about those issues and attempted to negotiate a position where her employment allowed her to work around those matters. It would also have been expected that the resignation letter would have spoken about those pressures as being the reason that the applicant was ceasing employment.
Consistent with my reasoning, it seems to me that the “exceptions” that need to exist before the applicant can have access to the pro rata payments, need to be of the type that have interrupted her willingness to continue to work such that her ceasing to be an employee was a matter over which she had no real control. The circumstances recounted by the applicant do not fit into this category.
Conclusion
The applicant has not attained the age of 67 and therefore has not attained the age at which she may retire.
The applicant has not ceased to be an employee on account of illness, incapacity or domestic or other pressing necessity of such a nature as to justify the cessation of employment.
Because the applicant has not satisfied those pre-requisites, there is no obligation by the respondent to pay the applicant a pro rata entitlement to long service leave benefits.
I dismiss the application filed 4 May 2023.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 1 November 2023
0
0
1