Infosys Technologies Limited v State of Victoria
[2021] VSCA 219
•11 August 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2021 0011
| INFOSYS TECHNOLOGIES LIMITED (ACN 090 591 209) | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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| JUDGES: | NIALL and KENNEDY JJA and McDONALD AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 2 June 2021 |
| DATE OF JUDGMENT: | 11 August 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 219 |
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EMPLOYMENT LAW – Long service leave entitlements under the Long Service Leave Act 2018 – Whether plaintiff liable to make payments of long service leave to former employees – Former employees completed more than seven years of continuous employment commencing in India and continuing in Victoria until termination of employment – Whether employees’ service in India included in their seven years of continuous employment – Service in India not included in seven years of continuous employment – Plaintiff not liable to make payments of long service leave – Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204, not followed – Long Service Leave Act 2018 ss 6, 9, 11, 12, 18, 19 – Long Service Leave Act 1992 ss 56, 60 – Interpretation of Legislation Act 1984 ss 14(2), 48(b) – Interpretation Act 1897 (NSW) s 17 – Long Service Leave Act 1955 (NSW) s 4.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr PJ Hanks QC with Mr L Howard | Clayton Utz |
| For the Defendant | Mr PM O’Grady QC with Dr L Hilly | Maddocks |
NIALL JA:
I have had the very real advantage of reading in draft the reasons for judgment of Kennedy JA and McDonald AJA (‘the joint reasons’). I agree with them that neither Ms Anbalagan or Ms Thankappan were entitled to long service leave under the Long Service Leave Act 2018 (‘LSL Act’) at the time their employment with Infosys came to an end. Given the facts and arguments are comprehensively addressed in the joint reasons, I am able to express my own conclusions quite briefly.
Applicable principles
At issue is whether the LSL Act operates to confer an entitlement to long service leave based on employment that partially occurs outside of Victoria, in the sense that the employee provides services and performs the duties of employment outside of the State. That question arises because, for much of their time as employees of Infosys, Ms Anbalagan and Ms Thankappan were based in India.
Both parties accept that there must be some connection between the entitlement to long service leave under the LSL Act and Victoria. That is, the State did not contend that s 6 of the LSL Act conferred an entitlement on an employee whose employment had no connection with Victoria.
The search for a point of connection between the terms of the LSL Act and the employment that gives rise to the entitlement is not surprising. Although the LSL Act does not specify the need for a connection nor articulate what the connection must be, as a matter of basal principle, an Act of the Victorian Parliament is to be construed as dealing with matters or things in, or connected to, Victoria. That constructional principle is found both in what Leeming JA described as ‘principles of statutory construction developed by judge-made law’[1] and in s 48 of the Interpretation of Legislation Act1984 (‘ILA’).
[1]DRJ v Commissioner of Victims Rights(No 2) (2020) 103 NSWLR 692, 720 [109]; [2020] NSWCA 242 (‘DRJ’).
The constructional principle embodied in the common law and in s 48 of the ILA is not based merely on the extent of legislative competence of a State Parliament to enact laws with extra territorial effect. It reflects more than a desire to keep a law within constitutional power. Were it otherwise, s 48 would simply restate the rule in s 6 of the ILA that every Act shall be construed as operating to the full extent of, but not so as to exceed, the legislative power of the State. Section 48 performs a different function.
The purpose of s 48 is to ensure that, in the absence of a contrary intention, the subject matter of legislation has a territorial connection regardless of the generality of the language used. It reflects the common law principle that, ‘the persons, property, and events in respect of which Parliament has legislated are presumed to be limited to those in the territory over which it has jurisdiction’, and that, ‘it is always to be understood and implied that the legislature of a country is not intending to deal with persons or matters over which, according to the comity of nations, the jurisdiction properly belongs to some other sovereign or State.’[2] For that reason, neither s 6 nor s 48 produce the result that legislation is to be given a legal meaning ‘such that it applies to the maximal extent of extra territorial competence.’[3]
[2]Meyer Heine Pty Ltd v China Navigation Co Ltd (1966) 115 CLR 10, 30–1; [1966] HCA 11 (Taylor J) (citations omitted); DRJ (2020) 103 NSWLR 692, 722 [122]; [2020] NSWCA 242 (Leeming JA).
[3]DRJ (2020) 103 NSWLR 692, 726 [138]; [2020] NSWCA 242 (Leeming JA).
As the joint reasons explain, for the purposes of construction, the point of connection will generally be found in the central focus, or central conception of the relevant legislation that falls to be construed.
The competing constructions
As I apprehend it, there are, in substance, three competing constructions of s 6 of the LSL Act.
The first, proffered by Infosys, is that the phrase ‘continuous employment with one employer’ means employment that is undertaken ‘in and of Victoria’, and which has a continuous connection with Victoria. All of the employment that comprises the period of continuous employment must have the necessary connection. The effect of that construction is that at every point along the time continuum there will be a connection between the employment and Victoria. Infosys says that the relevant connection can be supplied in any one of three ways: where the employment is performed inside Victoria; in obedience to a direction emanating from Victoria; and where the employment is formed in Victoria. It arrives at its conclusion by relying on s 48 of the ILA and says that the relevant matter or thing with which s 6 is concerned is continuous employment which gives rise to the entitlement to long service leave.
The second construction is advanced by the State and is also based on s 48 of the ILA. It submits that the focus of the LSL Act is the entitlement to long service leave which is triggered by one of the events stipulated in ss 9, 18, 19 or 20 of the LSL Act. It says that the purpose of long service leave is to reward long service with the same employer, regardless of where the employment occurs, and that the central conception of the LSL Act is to provide leave when one of the triggering events occurs. On that basis, it is said that s 48 of the ILA requires that there be a sufficient connection between the triggering event and Victoria. That will be satisfied where, at the time the request for leave is made, the employment comes to an end, or the employer directs the employee to take long service leave, there is a sufficient connection to Victoria.
The third construction can be found in the reasons for judgment of Bromberg J as a member of the Full Court of the Federal Court in Cummins South Pacific Pty Ltd v Keenan.[4] That was a case concerned with the Long Service Leave Act1992 (‘the 1992 Act’) which, in some respects, is different to the LSL Act. His Honour concluded that it was necessary that there be a substantial connection between the continuous employment and Victoria, and to that extent shares much in common with the construction advanced by Infosys. But, according to Bromberg J, whether the relevant connection exists is to be assessed globally by identifying a period of employment with the one employer and asking whether that period taken as a whole had a substantial connection to Victoria. Consistently with that view, it may not matter that part of the employment had no connection to Victoria.
[4][2020] FCAFC 204 (Bromberg J) (‘Keenan’).
The State’s construction
In my opinion, substantially for the reasons expressed in the joint reasons, the State’s construction cannot be accepted. The critical focus of the LSL Act is the conferral of an entitlement to long service leave. It provides a reward for service of a qualifying duration. That entitlement exists independently of the occasions on which the employer discharges its obligations or when the employee receives the benefit of the leave. It is artificial to sever the entitlement from the occasion on which it is enjoyed and then treat the latter as the focus of the scheme. In substance, the provisions relied on by the State are facultative provisions that give effect to the primary benefits that the LSL Act confers. As the joint reasons demonstrate, continuous employment is indispensable and the entitlement is a reward for that service.
The decision in Keenan
In my opinion however, rejection of the State’s construction does not address the reasoning in Keenan because Keenan holds that it is necessary that there be a connection between Victoria and the relevant continuous employment.
When Mr Kennan’s employment came to an end he was employed in Victoria by Cummins South Pacific Pty Ltd (‘CSP’) and had completed 34 years of continuous service with that company or with a related company. Chronologically, Mr Keenan’s employment had four distinct components: just under 14 years in the United Kingdom with a corporation related to CSP;[5] 12 years employed by CSP at premises in Scoresby, Victoria;[6] 6 years on secondment for a related corporation in the USA;[7] and 18 months with CSP in Box Hill, Victoria.[8] Once the related corporation provisions of the 1992 Act were applied, Mr Keenan was continuously employed by the ‘one employer’ for 34 years.
[5]September 1981 to February 1995.
[6]February 1995 to May 2007.
[7]May 2007 to December 2013.
[8]March 2014 to November 2015.
Both the 1992 Act and the LSL Act conferred an entitlement based on continuous employment with the one employer. Although as will appear, the accrual of long service leave is different in the LSL Act: the 1992 Act provided for leave on the completion of a specific term, first of 15 years and then after every 5 years. In the event that employment came to an end before the relevant anniversary, the 1992 Act conferred a pro rata entitlement on the happening of that event. Under the 1992 Act the employee did not accrue long service leave between anniversaries. By contrast, under the LSL Act, once the qualifying period of 7 years is reached long service leave accrues, and continues to accrue, as employment continues.
In Keenan, the issue was whether the period of continuous employment included service outside of Victoria. More specifically, the issue was whether Mr Keenan’s service in the United Kingdom, which at the time it was rendered had no connection to Victoria, was to be recognised for the purpose of calculating his long service leave entitlements. It was accepted by his employer that Mr Keenan’s later service in the USA should be recognised.
The primary judge held that Mr Keenan had, for the purposes of the 1992 Act, 34 years of continuous employment with the one employer and that all of the employment was to be factored in when calculating Mr Keenan’s long service leave entitlements. A majority of the Full Court of the Federal Court agreed with that conclusion.
Bromberg J, with whom Mortimer J agreed, ultimately resolved the issue by treating the employment as a single continuous period and asking whether that service, taken as a whole, had a substantial connection to Victoria (or might fairly be characterised as ‘Victorian service’). He answered that question in the affirmative, and, as a result, held that Mr Keenan was entitled to long service leave based on the entire 34 year period.
In coming to that conclusion, Bromberg J dealt with two arguments made by the employer as to why the UK service should be excluded. First, he considered, and rejected, an argument that the 1992 Act only covered employment in Victoria. Second, he addressed an alternative submission, that a substantial connection was required between the UK employment and Victoria, and on that basis a connection only arose when Mr Keenan began to work in Victoria.
As to the first submission, Bromberg J considered that requiring all of the service to be rendered in Victoria would be inconsistent with the scheme of the 1992 Act (also found in the LSL Act) that, in certain circumstances, treats employment with different employers as being employment with the one employer.[9] Further, the requirement that all of the service be provided in Victoria was not supported by s 48 of the ILA given that s 48 required a construction that confined matters to those in and for Victoria and not just those in Victoria.[10] As noted by Bromberg J, this was illustrated by the employer’s acceptance that Mr Keenan’s employment in the USA formed part of his continuous employment with the one employer.
[9]Keenan [2020] FCAFC 204, [167].
[10]Emphasis added.
Bromberg J then turned to the second submission. He said that, insofar as the second submission may have carried with it an argument about extra territorial legislative power, he rejected it on the basis that extra territorial legislation will be valid provided that there is a real connection between the subject matter and the legislation, and does not require the existence of a substantial connection. The issue was one of construction and not power or validity.
Bromberg J next addressed whether, as a matter of construction, the 1992 Act required that there be a substantial connection between the UK service and Victoria. He accepted that it was necessary to establish a substantial connection between the employment and Victoria but, relying on Australian Timken Pty Ltd v Stone (No 2)[11] and International Computers (Australia) Pty Ltd v Weaving,[12] held that ‘it is the service provided by the employee as a whole, rather than each component of that service assessed individually, that must have a “substantial connection” with the territory.’[13] In making that global assessment, Bromberg J concluded that ‘the primary focus of the characterisation process should be on the years of service closest to the time at which liability to provide the long service entitlements in question arose.’[14]
[11][1971] AR (NSW) 246 (McKeon, Sheldon and Sheppard JJ) (‘Timken’).
[12][1981] 2 NSWLR 64; [1981] AR (NSW) 548 (Watson, Dey and Macken JJ) (‘Weaving’).
[13]Keenan [2020] FCAFC 204, [191].
[14]Ibid [194].
That reasoning starts by identifying the continuous employment and then turns to whether that continuous employment, viewed in the round, has a substantial connection with Victoria. Applying that approach to Mr Keenan, Bromberg J concluded:
The service of Mr Keenan in question was service of some 34 years. Approximately 20 years or 60% of that service was provided to Cummins, a Victorian based employer. Of that service provided to Cummins, some 12 years was provided in Victoria including the last 1.75 years. Those features of Mr Keenan’s overall service demonstrate a substantial connection between Mr Keenan’s service and Victoria sufficient to characterise that service as Victorian service.[15]
[15]Ibid [199].
It is clear from that passage that Bromberg J identified a single indivisible period of service with the one employer and embarked on an inquiry as to its overall character. The process of characterisation had, as a ‘primary focus’,[16] the events that gave rise to the liability, that is, a termination or a request to take leave. In that respect he noted:
It seems to me that both Timken and International Computers emphasise, although that emphasis may be said to be more strongly made in International Computers than Timken, that the primary focus of the characterisation process should be on the years of service closest to the time at which liability to provide the long service leave entitlements in question arose.
[16]Ibid [194].
However, it is important to emphasise that Bromberg J was not asking whether the relevant event that triggered the liability had the territorial connection to Victoria (although this was a primary focus), but whether the continuous employment, looked at globally, had that connection. So much can be seen by his reference to the percentage of time served in the different locations.
There are two aspects that are critical to his reasoning. The first is treating the employment as a single indivisible unit. In that context, it was critical that the 1992 Act, in certain circumstances, aggregated employment with different employers and treated it as an indivisible whole. To exclude periods of employment that, although undertaken with the same notional employer, occurred outside of Victoria or with no connection to the State, would, in his Honour’s view, be inconsistent with that aggregation. The second is that the critical time is when ‘liability to provide the long service leave entitlements in question arose.’[17]
[17]Ibid.
With respect to Bromberg J, I am unable to apply the same reasoning to the LSL Act. Whatever the position that existed under the 1992 Act, it would be wrong to adopt the reasoning to the LSL Act.
First, the constructional question that falls to be decided is the meaning of the phrase ‘continuous employment with one employer’, and whether it includes employment that has no connection with Victoria. In resolving that question it is necessary to apply the constructional rules that are relevant to the extra territorial reach of State legislation. Those rules are found both in the common law and in s 48 of the ILA.
The approach taken by Bromberg J was first to identify the meaning of the phrase ‘continuous employment’ having regard to the terms of the LSL Act and then turn to the connection that the words have to Victoria. That is, it defines continuous employment as an unbroken period of employment with the one employer (wherever it occurs) and then asks whether it is sufficiently connected to Victoria. Adopting that approach brings the relevant constructional rules to bear after the meaning has already been ascribed.
It is true that Bromberg J applied s 48 when considering the question of whether employment was confined to employment in Victoria. In doing so, his Honour said that s 48 applied to construe matters or things as being ‘in and for’ Victoria and so was not confined to service in Victoria. He went on to say that the contention should be rejected for principally the same reasons that a similar argument, made largely by reference to s 17 of the Interpretation Act1897 (NSW), was rejected in Timken on the basis that a contrary intention appears in the legislation.[18] However, rejecting the argument that employment must be in Victoria did not resolve the question whether all of the employment had to have a connection with Victoria. He addressed that question only after he determined that the assessment was to be made in respect of a single indivisible period of employment with the one employer.
[18]Ibid [167].
Second, the extended definition of ‘one employer’ says nothing about the geographic location in which the work occurs or the connection that the work may have to Victoria. It deals with a different topic. The purpose of the provision is to extend employment to those cases where there may be a break in employment ‘in a strict legal sense’ because the identity of the employer changes or because the employee is on leave.[19] Section 11 of the LSL Act is concerned with deeming continuity in employment where there is a change in employer or a change in the ownership of the business or of assets used in a business in which the employee is employed. Section 12 of the LSL Act is concerned with breaks in employment, such as leave, that are not treated as interrupting continuous employment. Excluding employment that has no connection with Victoria does not undermine the work of s 11 or s 12. Neither s 11 or s 12 is concerned with the connection between employment and Victoria, and it does not follow that the aggregation of service for one purpose should be extended for all purposes.
[19]Long Service Leave Act 2018 (Vic) s 11(1).
Third, the analysis fails to accommodate the fact that under the LSL Act leave accrues as work is performed.
Fourth, the reasoning shares the vice contained in the State’s construction in this case, being that it focusses on the triggering event or the time at which the liability is to be satisfied.
Section 6 of the LSL Act provides that at any point in time after 7 years of continuous employment with the one employer, an employee has an entitlement to long service leave calculated at the rate of 1/60th of the employees total period of continuous employment less any period of long serve leave taken. Implicit in s 6 is an obligation on an employer to meet that entitlement. The circumstances in which the employer is to meet the liability are set out in the balance of the LSL Act and include providing leave in answer to a request,[20] directing an employee to take leave,[21] paying the employee when on leave, and paying out the value of the entitlement if the employment ends before any accrued leave has been taken.[22]
[20]Ibid s 18.
[21]Ibid s 19.
[22]Ibid ss 9 and 10.
In aid of an employer’s obligations, an employer must keep a ‘long service leave record’ relating to an employee during the employee’s period of continuous employment by the employer,[23] and for at least 7 years after the employee stops working for the employer.[24] Section 37 of the LSL Act makes it an offence for an employer to fail to keep a long service record for each employee.
[23]Ibid s 37(2).
[24]Ibid s 37(3).
The entitlement, and the corresponding obligations, accrue as employment is performed. Once the qualifying period has passed, each day worked results in an accretion to the employee’s entitlement. That entitlement is not dependent on either the taking of the leave or the making of a payment in lieu once employment comes to an end. It follows that, at any point in time, the employee and the employer should be in a position to know whether or not long service leave is accruing in respect of the employment and what the entitlement is. Given that long service leave is a reward for service that accrues after a qualifying period, it would be anomalous for the entitlement to depend on some later assessment of whether the employment, looked at globally, has a sufficient connection to Victoria.
The approach taken by Bromberg J produces anomalous results that do not sit well in the LSL Act. First, an employee might accrue long service leave on employment that has no immediate or intended connection with Victoria at the time it is performed. That is most obviously so where the employment at the time it commences has no connection with Victoria. Indeed, that was the case with the UK service performed by Mr Keenan – at the time it was performed, Mr Keenan’s employment had no connection to Victoria, and possibly, he had not even contemplated a scenario in which his employment would develop a connection to Victoria in the future. The effect of the approach taken by Bromberg J is to retrospectively ascribe a connection to Victoria for past employment where, simply put, there is none. Equally, service that is plainly undertaken in Victoria might not attract long service leave if, having regard to other service, the employment as a whole lacks a sufficient connection to Victoria. In those circumstances the entitlement might not correspond to the work performed. Adopting Bromberg J’s construction would also give rise to uncertainty as to when an employer is required to keep a long service record.
In my opinion, s 6 of the LSL Act operates on employment that has a sufficient connection to Victoria at the time it is undertaken. Applying that approach, a period of continuous employment will always have the necessary connection. It is not necessary in this case to seek to chart the bounds of which employment will have such a connection. It is clearly capable of extending to employment in which the employee performs work for his or her employer outside of Victoria or where the employer is located outside of this State. Equally, where employment commences with an employer, the fact that the employer actually or notionally remains ‘one employer’ will be relevant to ascertaining whether there is a continuing connection even if during the employment the employee is engaged outside of the State. For that reason, a secondment from Victorian employment to a related entity outside of Victoria will very often be Victorian employment covered by the LSL Act.
Wherever the boundary is drawn, it is clear that the employment of each of Ms Anbalagan and Ms Thankappan that was undertaken in India had absolutely no connection with Victoria. For that reason, their employment in India did not form part of their continuous employment with Infosys for the purposes of the LSL Act. At the time their employment came to an end in Victoria, neither Ms Anbalagan or Ms Thankappan had completed 7 years of continuous employment with the one employer for the purposes of the LSL Act. Neither of them had an entitlement to long service leave under the LSL Act.
Conclusion
The proceeding should be disposed of in the manner indicated in the joint reasons.
KENNEDY JA
McDONALD AJA:
Introduction
The issue for determination in this proceeding[25] is whether the plaintiff (‘Infosys’) is liable to make payments of long service leave to two former employees, Ms Thankappan and Ms Anbalagan (‘the employees’). The employees each completed more than seven years of employment with Infosys, commencing in India and thereafter continuing in Victoria until the termination of their employment. Whether Infosys is liable to make payments of long service leave to the employees turns on the construction of the Long Service Leave Act 2018 (‘LSL Act’). The primary issue is whether the employees’ service in India is included in their ‘7 years of continuous employment’ for the purpose of determining whether they have an entitlement to long service leave under s 6 of the LSL Act.
[25]On 4 February 2021 Ierodiaconou AsJ ordered the proceeding be reserved for the consideration of the Court of Appeal pursuant to Supreme Court Act 1986 s 17B.
Infosys contends that the phrase ‘continuous employment’ in s 6 of the LSL Act should be construed in light of s 48(b) of the Interpretation of Legislation Act 1984 (‘ILA’). Infosys contends that, when so construed, ‘continuous employment’ means employment ‘in and of Victoria’. It submits that the LSL Act regulates employment performed inside Victoria, employment formed in Victoria, and employment performed outside of Victoria where the performance is in obedience to a direction emanating from Victoria. Infosys contends that the employees’ service in India was not service in and of Victoria and does not constitute continuous employment for the purposes of s 6 of the LSL Act. As such, the employees had no entitlement to payment of a long service leave entitlement upon termination of their employment.
The defendant (‘the State’) regulates the LSL Act through an administrative office known as Wage Inspectorate Victoria (‘the Inspectorate’). The State contends that the central conception of the LSL Act is the event which gives rise to an entitlement to long service leave: termination of employment (s 9 of the LSL Act), an employer’s acceptance of an employee’s request to take long service leave (s 18 of the LSL Act) or a direction by an employer to an employee to take leave (s 19 of the LSL Act). The State submits that, as at the date of the termination of the employees’ employment, they were entitled to payment of long service leave under s 9(1) of the LSL Act, in respect of the entire period of their continuous employment with Infosys, irrespective of where the service was performed. The State contends that the employees’ service in India is included in their period of continuous employment with Infosys.
It is common ground that, as the LSL Act contains no express provision connecting the Act to Victoria, it is necessary to identify the central conception of the legislation and for the central conception to bear a connection with Victoria. Infosys contends that the central conception of the LSL Act is the requirement under s 6 for an employee to complete seven years of continuous service with one employer. The State contends the central conception is the event which gives rise to an employee having an entitlement to long service leave.
For the reasons which follow, we consider that the indispensability of an employee completing seven years of continuous employment with one employer, as a pre-condition to having an entitlement to long service leave, points to this being the central conception of the LSL Act. When s 6 of the LSL Act is construed in light of s 48(b) of the ILA, ‘continuous employment’ means employment ‘in and of’ Victoria. There was no connection between the employees’ employment in India and Victoria. That employment does not form part of their continuous employment for the purpose of s 6 of the LSL Act. The result is that neither of the employees had an entitlement to long service leave upon the termination of their employment.
Background
The following matters are not in dispute. They are recorded in a Statement of Agreed Facts.[26] Infosys is a company incorporated in India and is registered as a foreign company under the Corporations Act 2001 (Cth). Infosys has a large workforce based in India and from time to time deploys members of that workforce on engagements to various international locations, including Australia. Infosys calls these overseas engagements ‘deputations’, and calls its employees deployed on deputation ‘deputees’. Infosys commonly has employees performing work in the following Australian States and Territories: Victoria, New South Wales, Queensland, Western Australia, South Australia and the Australian Capital Territory. At any one time, it is common for Infosys to have approximately 2,000 ‘deputees’ performing work in Victoria.[27]
[26]‘Statement of Agreed Facts’, filed 16 April 2021.
[27]Ibid [1]–[5].
Ms Thankappan commenced employment with Infosys in India on 5 October 2009. The terms of Ms Thankappan’s employment were governed by an offer of employment which comprised a letter dated 18 September 2009 and annexures thereto. Ms Thankappan’s initial position was as a Systems Engineer. Pursuant to a contract consisting of letters dated 15 April 2013 and 2 July 2013 Ms Thankappan was engaged to work for Infosys in Swindon, United Kingdom. From 17 April 2013 to 4 April 2014 Ms Thankappan worked for Infosys in Swindon, as a Project Manager at the offices of the Nationwide Building Society.[28]
[28]Ibid [6]–[10].
Pursuant to a contract consisting of a letter dated 17 November 2016 and annexures thereto, Ms Thankappan was engaged to work for Infosys in Melbourne, Victoria. From 18 November 2016 to 21 January 2019 Ms Thankappan worked for Infosys in Melbourne as a Technology Analyst at the offices of Telstra. Ms Thankappan resigned from her employment with Infosys with effect from 25 January 2019.[29]
[29]Ibid [11]–[12], [16].
Ms Thankappan worked for Infosys for a continuous period totalling 9 years, 3 months and 20 days consisting of:
(i) a continuous period of service between 5 October 2009 and 16 April 2013 in India, under terms of employment governed by the offer of employment consisting of the letter dated 18 September 2009 and the annexures thereto (3 years, 6 months and 11 days);
(ii) a continuous period of service between 17 April 2013 and 4 April 2014 in the United Kingdom, under the terms of employment consisting of the letters dated 15 April 2013 and 2 July 2013 (11 months and 18 days);
(iii) a continuous period of service between 5 April 2014 and 19 November 2016 in India, under the terms of employment governed by the offer of employment dated 18 September 2009 and the annexures thereto (2 years, 7 months and 15 days); and
(iv) a continuous period of service between 20 November 2016 and 25 January 2019 in Victoria, under the terms of employment consisting of the letter dated 17 November 2016 and annexures thereto (2 years, 2 months and 5 days).[30]
[30]Ibid [17].
Ms Anbalagan commenced employment with Infosys in India on 11 June 2007. The terms of Ms Anbalagan’s employment were governed by an offer of employment consisting of a letter dated 24 June 2006 and annexures thereto. Ms Anbalagan’s initial position was as a Software Engineer. Pursuant to a contract consisting of a letter dated 5 January 2017 and annexures thereto, Ms Anbalagan was engaged to work for Infosys in Melbourne, Victoria. From 14 January 2017 to 9 September 2019 Ms Anbalagan worked for Infosys in Melbourne as a Technology Lead at the offices of Telstra. Ms Anbalagan resigned from her employment with effect from 9 September 2019.[31] Ms Anbalagan worked for Infosys for a continuous period totalling 12 years, 2 months and 29 days consisting of:
[31]Ibid [18]–[22], [26].
(i) a continuous period of service between 11 June 2007 and 13 January 2017 in India under the terms of employment contained in the letter dated 24 June 2006 (9 years, 7 months and 2 days); and
(ii) a continuous period of service between 14 January 2017 and 9 September 2019 in Victoria under the terms of employment dated 5 January 2017 (2 years, 7 months and 26 days).[32]
[32]Ibid [27].
On 24 December 2019, the Inspectorate, on behalf of the State, wrote two letters to Infosys, one in respect of Ms Thankappan, and the other in respect of Ms Anbalagan.[33] The Inspectorate informed Infosys that it had received complaints from Ms Thankappan and Ms Anbalagan alleging that each of them was entitled to, but did not receive, a payment in lieu of long service leave when their employment with Infosys ended, in contravention of the LSL Act.[34] The amount claimed in respect of Ms Thankappan was 8.1 weeks of long service leave at $1,466.40 weekly ordinary pay: $11,877.84 gross. The amount claimed in respect of Ms Anbalagan was 10.2 weeks of long service leave at $2,077.00 weekly ordinary pay: $21,185.40 gross.
[33]Ibid [30].
[34]Ibid [31].
It is common ground that Ms Thankappan’s and Ms Anbalagan’s employment continued to be subject to Indian legislation while on deputation in Victoria, including the Payment of Gratuity Act 1972 (India) (‘Gratuity Act’). The Gratuity Act requires Infosys to make payments to its Indian employees upon termination of employment after 5 or more years of service at the rate of 15 days of wages for each completed year of service.[35] Both Ms Thankappan and Ms Anbalagan received their Gratuity Act entitlement upon termination of their employment in Victoria. The payment was calculated on the basis of their entire period of employment with Infosys, including their Victoria deputation.
[35]Payment of Gratuity Act 1972 (India) ss 4(1), (6).
Long Service Leave Act 2018
Section 6 of the LSL Act provides:
At any time after completing 7 years of continuous employment with one employer, an employee is entitled to an amount of long service leave on ordinary pay equal to 1/60th of the employee’s total period of continuous employment less any period of long service leave taken during that period.
The reference in s 6 to ‘one employer’ and ‘continuous employment’ must be read in conjunction with ss 11 and 12 of the LSL Act. Section 11 sets out several situations in which an employee is deemed to have been employed by one employer despite having been employed during the relevant period by more than one employer in a strict legal sense. The situations include employment by a related body corporate (s 11(2)(a)), changes in ownership of a business (s 11(3)), re-employment by a new owner of a business within 12 weeks of an employee having been dismissed by the previous business owner (s 11(5)), and employment by a new employer which is a transmittee of business assets (s 11(6)).
Section 12 sets out several situations in which an employee’s employment is taken to be continuous despite absences from work, including leave related absences (s 12(2)), absences between instances of casual employment (s 12(3)), and absences due to an employer standing down an employee during periods of industrial action or breakdown in machinery or equipment (s 12(7)).
Sections 9(1) and (2) provide:
(1)If an employee’s employment ends (other than because of the employee’s death) before the employee has taken all the long service leave to which the employee is entitled, the employee is taken to have started long service leave on the day that the employment ended.
(2)On the day referred to in subsection (1), the employee’s employer must pay the employee the full amount of the employee’s long service leave entitlement as at that day.
Section 9 creates an offence. In the case of a natural person, 12 penalty units for each day during which the offence continues. In the case of a body corporate, 60 penalty units for each day during which the offence continues.
Section 18(1) provides that an employee may make a request to their employer to take long service leave for a period of not less than one day. Section 18(2) provides that an employer must grant an employee’s request to take long service leave as soon as practicable after receiving the request unless the employer has reasonable grounds for refusing the request.
Section 19(1) provides that an employer may direct an employee to take long service leave at a specified time and for a specified period by giving the employee at least 12 weeks’ written notice. Section 19(2) provides that, subject to an order of the Industrial Division of the Magistrates’ Court, an employee must comply with a direction given under s 19(1).
The central conception of the LSL Act
The Victorian Parliament may enact laws with extraterritorial operation and effect provided there is a sufficient territorial nexus with Victoria.[36] The nexus may be relatively slight. A State legislature is competent to make any fact, circumstance, occurrence or thing in or connected with the State the occasion for the imposition of any liability upon any person concerned therein.[37]
[36]See Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1; [2002] HCA 27.
[37]Broken Hill South Ltd v Deputy Commissioner of Taxation (NSW) (1937) 56 CLR 337, 375; [1937] HCA 4; DRJ v Commissioner of Victims Rights (No 2) (2020) 103 NSWLR 692, 700–1 [20]; [2020] NSWCA 242 (‘DRJ’).
The question in the present proceeding is not whether the Victorian legislature has capacity to make a law providing for long service leave entitlements in respect of service provided by an employee to an employer in India. Subject to there being some connection between the Indian service and Victoria, even a remote or general connection, the Victorian legislature does have power to legislate long service leave entitlements in respect of service provided by an employee in India.[38] The question is not one of legislative power but rather the construction of ss 6 and 9 of the LSL Act. In particular, whether ‘continuous employment’ in s 6 of the LSL Act includes service provided to an Indian employer prior to an employee commencing employment in Victoria.
[38]DRJ (2020) 103 NSWLR 692, 723 [128]; [2020] NSWCA 242.
The LSL Act makes no provision as to its territorial reach and operation.[39] Both Infosys and the State seek to fill this lacuna by resort to s 48(b) of the ILA, which provides:
In an Act or subordinate instrument, unless the contrary intention appears—
(b)a reference to a locality, jurisdiction or other matter or thing shall be construed as a reference to such locality, jurisdiction or other matter or thing in and of Victoria.
[39]Cf Long Service Leave Act 1987 (SA) s 4(1).
In DRJ v Commissioner of Victims Rights (No 2) (‘DRJ’),[40] Leeming JA, in reference to s 12 of the Interpretation Act 1987 (NSW), the New South Wales equivalent of s 48(b) of the ILA, stated:
A further difficulty in the application of s 12 is that one may very readily consider examples where there are more than one ‘locality, jurisdiction or other matter or thing’ to which s 12 is capable of applying.[41]
[40]DRJ (2020) 103 NSWLR 692; [2020] NSWCA 242.
[41]Ibid 721 [116] (emphasis altered).
His Honour’s observation is brought into sharp relief by the competing contentions of Infosys and the State in the present proceeding. Infosys submits that the ‘matter or thing’ for the purposes of s 48(b) of the ILA is ‘7 years of continuous employment with one employer’. The State submits that the ‘matter or thing’ is the conferral of an entitlement to long service leave in accordance with ss 9, 18 or 19 of the LSL Act. The State submits that, provided there is a sufficient connection between the event triggering an entitlement to long service leave (termination/request/ direction), it is unnecessary for the entirety of an employee’s period of continuous employment to be ‘in and of’ Victoria.
Where no guidance is provided in legislation as to its territorial reach and where there is more than one matter or thing upon which s 48(b) of the ILA can operate, the choice between competing concepts is resolved by ascertaining the hinge[42] or ‘central conception’[43] of the legislation.
[42]Insight Vacations Pty Ltd v Young (2011) 243 CLR 149, 162 [36]; [2011] HCA 16.
[43]Old UCG Inc v Industrial Relations Commission (NSW) (2006) 225 CLR 274, 283 [23]; [2006] HCA 24; DRJ (2020) 103 NSWLR 692, 736 [180]; [2020] NSWCA 242.
In DRJ, Leeming JA stated:
Putting to one side the different considerations applicable to legislation creating an offence, in cases where no express provision has been made connecting the statute to New South Wales, the task is to identify the central focus or central conception of the legislation, and require that to bear a connection with New South Wales. One does so as a matter of construction, based on subject matter and scope, and with a regard to internal indications and to avoiding improbable and absurd outcomes. It will be relevant to have regard to the purpose of the statute, the likelihood that the statutory purpose will be evaded if made to depend upon something readily altered at the instance of the parties, and the need to avoid an unduly restrictive approach whereby more than one factum is required to bear a connection.[44]
[44]DRJ (2020) 103 NSWLR 692,) 732 [157]; [2020] NSWCA 242.
The completion of seven years of continuous employment with one employer is indispensable to an employee having an entitlement to long service leave. This indispensability points to the completion of seven years of continuous employment with one employer being the central conception of the LSL Act.[45] The deeming provisions in respect of ‘one employer’ (s 11), ‘continuous employment’ (s 12), and ‘periods of continuous employment’ (ss 13 and 14) are each hinged on the concept of seven years of continuous employment with one employer.
[45]Ibid 737 [182].
Mr O’Grady QC, who appeared with Dr Hilly, for the State submitted that the opening words of s 6, ‘[a]t any time after completing 7 years of continuous employment …’[46] constitute an acknowledgement that the entitlement to long service leave is one that arises upon the occurrence of a particular event. We reject this submission. An employee does not have an entitlement to long service leave by reason of termination of their employment or having made a request or being directed to take long service leave. An employee is entitled to long service leave by reason of completing seven years of continuous employment with one employer. Sections 9, 18 and 19 regulate the circumstances in which an employee receives/is paid the benefit of the long service leave entitlement which has accrued by reason of the completion of seven years of continuous employment with one employer.
[46]LSL Act s 6 (emphasis added).
The obligation upon an employer under s 9(2) of the LSL Act to pay an employee the full amount of an employee’s long service leave entitlement is contingent upon the employee having an entitlement to long service leave when their employment is terminated. Section 9 has no work to do if an employee has not completed seven years of continuous employment. The same point applies in respect of a request for long service leave under s 18, or a direction by an employer under s 19 of the LSL Act. The entitlement to long service leave by reason of an employee completing seven years of continuous employment is the hinge which ss 9, 18 and 19 are attached to.
It is common ground that the purpose, albeit unstated, of the LSL Act is to provide a reward for long and faithful service. Mr O’Grady submitted that the breadth of the deeming provisions in ss 11 and 12 of the LSL Act in relation to ‘one employer’ and ‘continuous employment’ emphasise the statutory purpose of rewarding loyalty by an employee to their employer. We accept this submission. However, it does not follow that the occasion for payment/receipt of long service leave entitlements under ss 9, 18 and 19 constitutes the central conception of the LSL Act.
In support of its contention that the ‘hinge’ for the purpose of s 48(b) of the ILA is the event giving rise to an entitlement, the State submits:
Courts and tribunals have rejected the proposition that the whole of the service must be in the particular State. Such a construction is contrary to ‘the basic social purpose of the Act as reward for long service’ and ‘[s]o regarded, the locality of the service appears irrelevant’. Rather, ‘it might be thought that the legislature would regard as critical, in consideration of what events or circumstances need to be connected with New South Wales, the actual occasion or event which gives rise to liability to give leave or to pay money’.[47]
[47]Defendant, ‘Defendant’s Outline of Submissions’, 9 February 2021, [47] (citations omitted).
In support of this submission the State cites the judgments of the NSW Industrial Relations Commission in Court Session in Australian Timken Pty Ltd v Stone (No 2) (‘Timken’)[48] and International Computers (Australia) Pty Ltd v Weaving (‘Weaving’).[49] Timken and Weaving concerned the long service leave entitlement of former employees under s 4(1) of the Long Service Leave Act 1955 (NSW) (‘LSL Act NSW’). Section 4(1) provided:
Except as otherwise provided in this Act, every worker shall be entitled to long service leave on ordinary pay in respect of his service with an employer. Service with the employer before the commencement of this Act as well as service with the employer after such commencement shall be taken into account for the purposes of this section.
[48][1971] AR (NSW) 246 (‘Timken’).
[49][1981] 2 NSWLR 64 (‘Weaving’).
In Timken the Commission in Court Session concluded that construing s 4(1) in light of s 17 of the Interpretation Act 1897 (NSW) ‘would give effect to the appellant’s submission that the entirety of the service subject to temporary absences must be performed in New South Wales’.[50] This reasoning is not applicable to the construction of ‘continuous employment’ in s 6 of the LSL Act. When s 6 is read in light of s 48(b) there is no requirement that all of an employee’s service must be performed in Victoria. Rather, the entitlement will arise whenever the continuous employment is ‘in and of Victoria’.
[50]Timken [1971] AR (NSW) 246, 252.
In Weaving the Commission in Court Session gave no consideration to the construction of s 4(1) of the LSL Act NSW in light of s 17 of the Interpretation Act 1897 (NSW). Rather, the Commission in Court Session implicitly endorsed the reasoning in Timken that to construe s 4(1) in light of s 17 of the Interpretation Act 1897 (NSW) would mean that all service would have to be performed in NSW:
In light of the decision in Timken’s case we consider that it is not necessary that all service should be substantially connected with New South Wales.[51]
[51]Weaving [1981] 2 NSWLR 64, 74 (citations omitted).
Neither Timken nor Weaving support a finding that the central conception of the LSL Act is the prescribed event in ss 9, 18 and 19 of the LSL Act. The basis upon which the Commission in Court Session concluded that s 4(1) of the LSL Act NSW should not be construed by reference to s 17 of the Interpretation Act 1897 (NSW), has no application to s 6 of the LSL Act and s 48(b) of the ILA. When s 6 of the LSL Act is construed in light of s 48(b) of the ILA, ‘continuous employment with one employer’ is not limited to service performed in Victoria. The foundation of the finding of contrary intention in Timken, which was implicitly endorsed in Weaving, has no application to s 6 of the LSL Act and s 48(b) of the ILA.
The principle that Parliament is taken to have intended the words of an Act to bear the meaning already judicially attributed to them[52] is not relevant to the construction of ss 6 and 9 of the LSL Act. The text of s 4(1) of the LSL Act NSW is not the same as s 6 of the LSL Act. The phrase ‘continuous employment with one employer’ does not appear in s 4 of the LSL Act NSW. The judgments in Timken and Weaving do not attribute a meaning to the phrase ‘continuous employment with one employer’.
[52]Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96, 106–7; [1994] HCA 34; Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309, 323–4 [6]–[7]; [2004] HCA 40.
The State seeks to characterise termination of employment (s 9), a request for long service leave (s 18) and a direction to take long service leave (s 19) as events which trigger an employer’s liability for an employee’s long service leave entitlements. We reject this submission. Properly characterised, the events prescribed in ss 9, 18 and 19 are simply the occasion for an employee with an accrued long service leave entitlement, to receive that entitlement.
Moreover, if the occasion for receiving the entitlement is the central conception of the LSL Act, improbable and absurd outcomes could arise. Both Ms Thankappan and Ms Anbalagan had been employed continuously in India for more than seven years prior to arriving in Victoria. If their service with Infosys in India was ‘continuous employment with one employer’ for the purposes of s 6, they would have been entitled to make a request for long service leave immediately upon commencing work in Victoria. This would be an absurd outcome as their previous employment in India had no connection whatsoever with Victoria.
The LSL Act does not manifest a contrary intention
Absent the LSL Act manifesting a contrary intention, the reference to ‘7 years of continuous employment with one employer’ in s 6 of the LSL Act is properly construed as seven years of continuous employment with one employer in and of Victoria.
In ADCO Constructions Pty Ltd v Goudappel,[53] Gageler J stated in respect of the requisite contrary intention to displace s 30 of the Interpretation Act 1987 (NSW):
A contrary intention sufficient to displace s 30 of the Interpretation Act must ordinarily appear with the same reasonable certainty as is needed to displace the general common law rule. A contrary intention need not be express and its implication, although sometimes referred to as ‘necessary implication’, has not been confined to those extreme circumstances in which alteration of an existing right or liability ‘cannot be avoided without doing violence to the language of the enactment’. The cases, rather, demonstrate that a contrary intention will appear with the requisite degree of certainty if it appears ‘clearly’ or ‘plainly’ from the text and context of the provision in question that the provision is designed to operate in a manner which is inconsistent with the maintenance of an existing right or liability.[54]
[53](2014) 254 CLR 1; [2014] HCA 18.
[54]Ibid 22 [52] (citations omitted).
In Douglas v Harness Racing Victoria,[55] the Court of Appeal addressed the question of whether the Racing Amendment (Integrity and Disciplinary Structures) Act 2018 conferred on the appellant an accrued right to seek review by VCAT, and if so whether any intention expressly appeared in the Act contrary to the preservation of that right in accordance with s 14(2) of the ILA. The Court of Appeal stated:
Section 14(2) provides for the preservation of rights to which it applies ‘unless the contrary intention expressly appears’. In the context of comparable legislation where the word ‘expressly’ does not feature, the contrary intention must appear ‘with reasonable certainty’. That will be so if it appears ‘clearly’ or ‘plainly’ from the text and context of the provisions in question that they are intended to operate inconsistently with the preservation of the relevant right. The word ‘expressly’ which features in s 14(2), does not mean to exclude a contrary intention that appears only by necessary implication. To the contrary, ‘expressly’ means ‘plainly’, ‘clearly’, or ‘by necessary implication’.[56]
[55][2021] VSCA 128.
[56]Ibid [60] (citations omitted).
The State submits that the LSL Act manifests a contrary intention. The State submits that the purpose of the LSL Act of rewarding long and loyal service would be undermined if the entire period of an employee’s continuous service was to be ‘in and of Victoria’.[57] In effect, the State submits that a contrary intention sufficient to displace s 48(b) of the ILA arises because of inconsistency between s 48(b) and the purpose of the LSL Act.
[57]Transcript of proceedings, 2 June 2021, 54.28–31, 55.1–5.
The State’s submission would have force if, as a result of the application of s 48(b), ‘continuous employment with one employer’ means ‘continuous service in Victoria with one employer’. This construction of s 6 would undermine the purpose of the LSLAct of rewarding long and loyal service. It would mean, for example, that an employee employed pursuant to a contract formed in Victoria who was directed to manage a Victorian company’s business operations in Queensland, would not accrue long service leave entitlements in respect of service rendered outside of Victoria.
The ordinary meaning of ‘employment’ is the ‘state of being employed; employ; service’.[58] However, consistent with the use of the word ‘employment’ in s 12 (which sets out several situations in which an employee is deemed to be continuously employed), the word ‘employment’ appears in the LSL Act both as a reference to the state of being employed, as well as the provision of service pursuant to a contract. It is used in the former sense in s 12(2) which provides that an employee’s employment is taken to be continuous despite prescribed leave related absences. It is used in the latter sense in s 12(4) (‘terminating the employment’) and s 12(6) (‘termination of the employee’s employment’).
[58]Macquarie Dictionary (online at 10 June 2021) ‘employment’ (def 2).
Section 6 of the LSL Act is a beneficial provision which should be construed in a manner favourable to the employees who are to benefit from an entitlement to long service leave.[59] Hence the word ‘employment’ in s 6 should be construed as referable to the ordinary meaning of the state of being employed, as well as the provision of service pursuant to a contract. When construed in this way, employment ‘in and of Victoria’ may include employment performed inside Victoria, or in obedience to a direction emanating from Victoria, as well as employment formed in Victoria (as Infosys accepts).
[59]Bull v A-G (NSW) (1913) 17 CLR 370, 384; [1913] HCA 60.
Such a construction also means that there is no inconsistency between s 6 and the purpose of the LSL Act of providing a reward for loyal service. Further, this construction of ‘continuous employment’ removes the risk of an employer avoiding liability under the LSL Act by directing an employee to relocate to another state or territory.
Absent the LSL Act manifesting a contrary intention, s 6 is to be read and understood in light of s 48(b) of the ILA. In Douglas v Harness Racing Victoria[60] the Court of Appeal considered whether the applicants, who had been charged with serious offences against the Australian Harness Racing Rules, had an accrued right to apply to VCAT, preserved by s 14(2) of the ILA. Resolution of this question turned on the construction of the Racing Amendment (Integrity and Disciplinary Structures) Act 2018. As to the approach to the construction of the Act in light of s 14(2) of the ILA, the Court of Appeal stated:
More fundamentally, in principle what is taking place is a single act of statutory construction. Gleeson CJ explained the correct approach in Attorney-General (Qld) v Australian Industrial Relations Commission:
Acts of Parliament are drafted, and are intended to be read and understood, in light of the Acts Interpretation Act. A particular Act, and the Acts Interpretation Act, do not compete for attention, or rank in any order of priority. They work together. The meaning of the particular Act is to be understood in the light of the interpretation legislation. The scheme of that legislation is to state general principles that apply unless a contrary intention is manifested in a particular Act.[61]
[60][2021] VSCA 128.
[61]Ibid [24] (citations omitted).
Consistent with this approach, ‘continuous employment with one employer’, construed in light of s 48(b) of the ILA means ‘continuous employment with one employer in and of Victoria’. As to the meaning of ‘in and of’, in Wanganui–Rangitikei Electric Power Board v Australian Mutual Provident Society[62] McTiernan J stated in respect of s 17 of the Interpretation Act 1897 (NSW) (which is relevantly indistinguishable from s 48(b) of the ILA):
The phrase ‘in and of’ imports both situation and a close identification of the matter or thing with New South Wales. The phrase is a composite one and perhaps should not be divided.[63]
[62](1934) 50 CLR 581; [1934] HCA 3.
[63]Ibid 612–3.
In DRJ, Leeming JA, having noted that McTiernan J was not expressing a concluded view as to the meaning of the phrase ‘in and of’, stated:
Plainly enough, the words ‘in and of’ denote an association with New South Wales. Once it be accepted that s 12(1)(b) may apply to intangible things, such as laws and obligations, which lack any natural geographical sense, then sense may readily be given to the width of the words ‘in and of’. Even if the intangible thing is not physically ‘in’ New South Wales, it may still make sense to construe a New South Wales statute so that it only applies to laws or obligations which may be said to be ‘in and of’ New South Wales.[64]
[64]DRJ (2020) 103 NSWLR 692, 719 [104]; [2020] NSWCA 242.
In Sportsbet Pty Ltd v Victoria[65] Gordon J considered the proper construction of s 2.6.1(1) of the Gambling Regulation Act 2003, which provided that: ‘A person must not possess an instrument of betting not authorised under this Act’. Her Honour construed s 2.6.1 in light of s 48(b) of the ILA:
Next, s 48(b) of the Interpretation Act provides that a reference in an Act to a matter or thing is a reference to a matter or thing in and of Victoria. The phrase ‘in and of’ is a composite phrase which ‘imports both situation and a close identification of the matter or thing’ with Victoria.
In relation to s 2.6.1 of the GRA the fact or circumstance which provides the relation or connection with Victoria is possession in Victoria of an unauthorised instrument of betting. The matter may be tested by asking with which jurisdiction is the relevant proscribed activity really connected, or, where does the activity have its natural seat or centre of gravity.[66]
[65][2011] FCA 961.
[66]Ibid 434 [42]–[43] (emphasis in original) (citations omitted).
Although Gordon J’s judgment was reversed on appeal, no issue was raised on appeal regarding Her Honour’s construction of s 2.6.1 of the Gambling Regulation Act 2003 by reference to s 48(b) of the ILA.[67]
[67]See Victoria v Sportsbet Pty Ltd (2012) 207 FCR 8, 36 [122]; [2012] FCAFC 143.
Continuous employment in and of Victoria with one employer requires a close identification between the continuous employment and Victoria. It is unnecessary to exhaustively define the circumstances as to when such close identification will arise. However, as indicated already, they can extend beyond circumstances where an employee’s service with the employer is in Victoria. In any event, wherever the line is drawn, the employment of each of Ms Thankappan and Ms Anbalagan in India had no connection with Victoria at all.
Cummins South Pacific Pty Ltd v Keenan
The conclusion set out above does not dispose of the proceeding. It remains necessary to address the judgment of the Full Court of the Federal Court of Australia in Cummins South Pacific Pty Ltd v Keenan (‘Keenan’).[68] In Keenan the Full Court of the Federal Court considered the meaning of the phrase ‘continuous employment with one employer’ in s 56 of the Long Service Leave Act 1992 (Vic) (‘the 1992 Act’). Infosys accepts that the majority decision (Bromberg J, Mortimer J agreeing) is binding unless shown to be plainly wrong.[69]
[68][2020] FCAFC 204 (‘Keenan’).
[69]Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 151–2 [135]; [2007] HCA 22.
Between 1 September 1981 and February 1995 Mr Keenan was employed in the United Kingdom by Cummins Darlington, a corporation related to Cummins South Pacific Pty Ltd (‘Cummins’). In February 1995 he commenced employment with Cummins at its premises in Scoresby, Victoria. From May 2007 to December 2013 while still employed by Cummins, Mr Keenan was seconded to work for a related corporation of Cummins in the USA. From March 2014 until the termination of his employment in November 2015, Mr Keenan continued to be employed by Cummins, working at its premises in Box Hill, Victoria. When his employment was terminated Mr Keenan had been employed directly by Cummins for approximately 20 years, of which 12 years had been spent in Victoria, together with 14 years of employment by Cummins Darlington in the United Kingdom. The issue before the Full Court of the Federal Court was whether Mr Keenan’s employment by Cummins Darlington between September 1981 and February 1995 should have been included in the calculation of his long service leave entitlement. Bromberg J (Mortimer J agreeing) held that Mr Keenan’s employment by Cummins Darlington formed part of his continuous employment with Cummins for the purposes of his entitlement to long service leave under s 56 of the 1992 Act. Anastassiou J dissented.
Section 56(a) of the 1992 Act provided that an employee is entitled to 13 weeks of long service leave on ordinary pay after completing 15 years of continuous employment with one employer. Section 60(2)(a) of the 1992 Act provided:
If an employee is employed by a corporation, he or she is to be regarded as having been employed by that corporation during any period that —
(a)he or she was employed by a related body corporate of that corporation (within the meaning of the Corporations Act).
Bromberg J held that Mr Keenan’s employment with Cummins Darlington between September 1981 and February 1995 was deemed to be employment with Cummins, such that Mr Keenan’s employment with Cummins was deemed to have commenced on 1 September 1981.[70]
[70]Keenan [2020] FCAFC 204, [153].
Section 60(2)(a) of the 1992 Act deemed an employee’s employment with a related body corporate to be employment by the one employer. However, s 60(2)(a) did not obviate the requirement under s 56 that an employee have 15 years of continuous employment with one employer in order to have an entitlement to long service leave. Section 60(2)(a) did not deem employment lacking a nexus with Victoria to be employment in and of Victoria. Mr Keenan’s employment with Cummins Darlington was deemed by s 60(2)(a) to be employment with Cummins. However, whether his service with Cummins Darlington in the United Kingdom was continuous employment within the meaning of s 56(a) turns on whether the employment with Cummins Darlington was in and of Victoria.
Bromberg J rejected Cummins’ contention, relying on s 48(b) of the ILA, that the phrase ‘continuous employment’ in s 56 of the 1992 Act should be interpreted to mean ‘continuous employment in Victoria’:
I presume that the ‘matter’ that Cummins contends should be construed as ‘in and of Victoria’ is the employment or period of employment to which Div 6 variously refers for the purpose of the calculation of the entitlement to long service leave there provided. Although again left largely undeveloped, I presume the contention put is that s 48(b) of the Interpretation Act has the effect of requiring that only the period of an employee’s employment worked in Victoria counts for the purposes of Div 6. The submission confronts the immediate problem that Cummins conceded that Mr Keenan’s employment in the United States should be counted but contended that his employment in the United Kingdom should not. How that apparent inconsistency is to be reconciled by reference to s 48(b) was not explained. In any event, the contention should be rejected for largely the same reasons that a similar argument, made largely by reference to s 17 of the Interpretation Act 1897 (NSW), was rejected in Timken on the basis that a contrary intention appears in the legislation. At 252 of Timken, McKeon, Sheldon and Sheppard JJ said this (references omitted):
Such an approach would give effect to the appellant’s submission that the entirety of the service subject to temporary absences must be performed in New South Wales. We must say that we find it difficult to think that this was the intention of the legislature. The subject matter of the legislation is most material: Mynott v Barnard, per Latham CJ. The Commission in Court Session in Kennedy v Board of Fire Commissioners described ‘the basic social purpose of the Act’ as ‘reward for long service’. So regarded, the locality of the service appears irrelevant. The nature of a continued attachment to an employer for a given period of time remains the same wherever the service is given. The provision of leave or payment in lieu thereof is an incident of employment in New South Wales. It is not a question of importing something into the contract of service. Like workers’ compensation or annual holidays it is one of the incidents which arise in relation to employment in this State. At the time the Act was passed — and the problem we are considering has existed since them [sic]: see Long Service Leave Exemptions Case — there were many companies in New South Wales with interstate and overseas ramifications. Likewise there were companies employing persons in the State which themselves were headquartered either in other States or overseas. It would seem to us strange if the Act were intended to apply only to those employees who had in fact performed the whole of their service in New South Wales subject to temporary absences.[71]
[71]Ibid [167].
Bromberg J presumed that Cummins contended that s 48(b) of the ILA has the effect of requiring that only the period of an employee’s employment actually worked in Victoria counts for the purposes of an employee’s continuous employment. His Honour noted that Cummins’ contention was ‘left largely undeveloped’. Properly understood in light of s 48(b) ILA, the reference to ‘continuous employment’ in s 56 of the 1992 Act is not confined to employment actually worked in Victoria. Rather, as indicated already, continuous employment includes such employment which is ‘in and of Victoria’. The judgment of the New South Wales Commission in Court session in Timken in respect of s 17 of the Interpretation Act 1987 (NSW) is not authority for the proposition that when s 56 of the 1992 Act is construed in light of s 48(b) ILA, only service provided by an employee in Victoria can constitute continuous employment. We also agree with Anastassiou J that the 1992 Act does not disclose a contrary intention so as to preclude the application of s 48(b) to the construction of ‘continuous employment’ in s 56 of the 1992 Act:
I do not agree with the observation in AustralianTimken Pty Ltd v Stone (No 2) [1971] AR (NSW) 246 at 252 that such an approach would have the effect that the entirety of the service would need to be performed in Victoria. The LSL Act clearly contemplates that there may be many companies in Victoria with employees that spend time interstate or overseas. Reading in the words ‘in Victoria’ would not have the effect of imposing an absolute territorial limitation.[72]
[72]Ibid [328] (emphasis in original).
Bromberg J considered that Cummins’ reliance upon s 48(b) of the ILA ‘confronts the immediate problem that Cummins conceded that Mr Keenan’s employment in the United States should be counted but contended that his employment in the United Kingdom should not’.[73] Mr Keenan’s secondment to a related corporation in the United States occurred between May 2007 and December 2013. Immediately prior to the secondment Mr Keenan had been employed by Cummins in Victoria since February 1995. As to the nature of a secondment, Anastassiou J correctly observed:
The concept of an employee being ‘seconded’ involves an arrangement under which the employee is retained as an employee of the entity arranging, or consenting, to the employee working for another, usually but not necessarily a related entity, his or her position being reserved or kept available for him or her to return to. The premise of the arrangement is that the employee remains an employee of the consenting employer or that the employee will have a right to return to his or her position at the conclusion of the secondment.[74]
When an employee is employed by a Victorian company and is seconded to work for a related corporation outside of Victoria, the period of the secondment has a close identification with Victoria. Service with the related corporation is continuing employment for the purposes of s 56 of the 1992 Act and s 6 of the LSL Act.
[73]Ibid [167].
[74]Ibid [340].
We therefore respectfully disagree with the majority finding in Keenan. First, unlike the majority, we can find no contrary intention in the 1992 Act such that s 48(b) of the ILA did not have any application to the meaning of ‘continuous employment’ in s 56 of the 1992 Act. The finding of contrary intention appears to be based on an incorrect conclusion that construing ‘continuous employment’ in light of s 48(b) of the ILA would require the entirety of an employee’s service to be worked in Victoria. Secondly, we are of the view that the majority’s reliance on the deeming provision in s 60(2)(a) was erroneous. Section 60(2) does not deem employment with no connection to Victoria to be employment in and of Victoria.
We note that Bromberg J described the submissions advanced on behalf of Cummins in respect of 48(b) of the ILA as ‘not developed’ and ‘undeveloped’.[75] In contrast, in the present proceeding, the Court had the benefit of very detailed and ably presented submissions in respect of the operation of s 48(b) of the ILA. Having had the benefit of those submissions, we are of the view that the conclusion reached was plainly wrong.
[75]Ibid [154], [167]–[168], [178].
Conclusion
Given the employment of each of Ms Anbalagan and Ms Thankappan in India had no connection with Victoria, that employment did not form part of their continuous employment under the LSLAct. It follows that neither had completed seven years of ‘continuous employment’ at the time their employment came to an end for the purposes of the LSL Act.
Infosys is therefore entitled to a declaration in the terms of paragraphs A and B of the amended indorsement of claim:
(1) The Court declares that:
(i)Infosys Technologies Limited (ACN 090 591 209) is not obliged to pay Ms Thankappan a long service leave entitlement pursuant to s 9 of the Long Service Leave Act 2018.
(ii)Infosys Technologies Limited (ACN 090 591 209) is not obliged to pay Ms Anbalagan a long service leave entitlement pursuant to s 9 of the Long Service Leave Act 2018.
We decline to grant the declaration sought in paragraph C of the amended general indorsement of claim. The declaration sought is in the following terms:
Pursuant to s 36 of the [Supreme Court Act] (or the inherent or equitable jurisdiction of the Court), a declaration that:
(a)a deputee’s entitlement as against Infosys to long service leave pursuant to s 6 of the Long Service Leave Act 2018 (Vic) arises only where the deputee has completed 7 years of continuous employment in and of Victoria with Infosys; and
(b)Infosys is not obliged by s 9(2) of the Long Service Leave Act 2018 (Vic), to pay a long service leave entitlement to a deputee whose employment within Infosys has ended, and who has not completed 7 years of continuous employment in and of Victoria with Infosys.
There is no utility in granting the declarations set out above as they do no more than set out the proper construction of ss 6 and 9 of the LSL Act.
Consistent with the concessions of counsel, Infosys is also entitled to an order that the State pay the costs of the proceeding, including reserve costs, on a standard basis, to be taxed in default of agreement.
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