Hitchin v Labourforce Solutions Pty Ltd

[2008] SASC 278

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal)

HITCHIN v LABOURFORCE SOLUTIONS PTY LTD

[2008] SASC 278

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)

17 October 2008

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY

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

Application for permission to appeal to the Full Court, from a decision of the Full Court of the Industrial Relations Court of South Australia - whether a point of principle arises - whether the interests of justice favour a grant of permission.

Held:  permission to appeal granted.

Fair Work Act 1994 (SA) s 191; Long Service Leave Act 1987 (SA) s 3(3); Supreme Court Civil Rules 2006 (SA) s 282, referred to.
Hitchin v Labourforce Solutions Pty Ltd [2008] SAIRC 51; Glenauchen Pty Ltd v Circuit Finance Pty Ltd [2001] SASC 61; SA Government Financing Authority v Bank of New Zealand [2002] SASC 56, considered.

HITCHIN v LABOURFORCE SOLUTIONS PTY LTD
[2008] SASC 278

Full Court:      Gray, Sulan and David JJ

THE COURT

1. This is an application for permission to appeal from a decision of the Full Court of the Industrial Relations Court of South Australia,[1] pursuant to section 191 of the Fair Work Act 1994 (SA) and Rule 282(1)(b) of the Supreme Court Civil Rules 2006 (SA).

   [1]    Hitchin v Labourforce Solutions Pty Ltd [2008] SAIRC 51.

2. The application is advanced on the following grounds. First, it is submitted that the grounds of appeal sought to be advanced are reasonably arguable. Secondly, it is submitted that the proceedings raise an issue of importance, namely the construction of the definition of “related employers” in section 3(3) of the Long Service Leave Act 1987 (SA), and its particular application to employees of labour hire and supply organisations. Thirdly, it is argued that the use of labour hire and supply organisations and the outsourcing of employees is prevalent, and such arrangements are becoming increasingly common in the workplace. Fourthly, it is submitted that it is common for enterprises which utilise the services of labour hire and supply organisations to operate between different labour suppliers. Fifthly, it is submitted that the present decision is likely to have a direct adverse effect on at least one other former employee of Labourforce Solutions Pty Ltd, the respondent in the appeal. Sixthly it is submitted that the appeal turns principally on a question of law – the construction of section 3(3) of the Long Service Leave Act. Finally, it is contended that Ms Hitchin, the applicant and appellant, was successful before the Industrial Magistrate, and so this is not a third attempt to prosecute an appeal.

3. The Court has had the opportunity to review the application for permission, the detailed outline of argument, the affidavit filed in support and the proposed grounds of appeal.  It is the view of the Court that questions of general principle do arise and that the interests of justice warrant a grant of permission to appeal. [2]

   [2]    Glenauchen Pty Ltd v Circuit Finance Pty Ltd [2001] SASC 61 at [3] (Doyle CJ, Nyland and Gray JJ); SA Government Financing Authority v Bank of New Zealand [2002] SASC 56 at [12]-[13] (Nyland, Martin, Gray JJ).

4. The order of the Court is that permission to appeal is granted in the terms sought.