Jayne Worthington (Department of State Development, Business and Innovation) v David Joseph, Trading as David Joseph & Co Lawyers (Industrial) - [2016] VMC 7

IN THE MAGISTRATES’ COURT OF VICTORIA

AT MELBOURNE

INDUSTRIAL DIVISION

BETWEEN:

JAYNE WORTHINGTON (DEPARTMENT OF STATE DEVELOPMENT, BUSINESS AND INNOVATION)

Informant

-and-

DAVID JOSEPH, TRADING AS DAVID JOSEPH & CO LAWYERS

(ABN 12 247 624 310)

Accused

MAGISTRATE: GINNANE

WHERE HEARD: MELBOURNE

DATE OF DECISION: 13 APRIL 2016

MEDIUM NEUTRAL CITATION: [2016] VMC007

APPEARANCES COUNSEL SOLICITOR

For the Informant Mr P Hanks QC Maddocks

For the Accused Mr M Baume David Joseph & Co

REASONS FOR DECISION

HIS HONOUR:

The accused is charged with one offence namely that on and from 7 December 2012 and continuing he did , trading as David Joseph & Co Lawyers (ABN 12247624310), being the former employer of Susan Charmaine Scorah, contravene Section 72 (2) of the Long Service Leave Act 1992 (Victoria). The particulars to the charge are expressed as follows:
David Joseph, trading as David Joseph & Co Lawyers, were required on 7 December 2012, to pay Susan Charmaine Scorah, an employee whose employment ended on 7 December 2012, before she had taken all of the long service leave to which she was entitled, the full amount of her long service leave entitlement as at that date, and have thereafter failed to do so.
The matter came on for a contested hearing on 21 October 2015. The informant was represented by Mr Hanks QC and the accused by Mr Baume of Counsel.
The Informant relied upon evidence contained in two affidavits. The first affidavit in time is deposed to by the former employee Ms Scorah. Her affidavit together with a number of exhibits was received into evidence[1]. The second affidavit received into evidence is that of the Informant Jayne Worthington, Manager, Employment Information and Compliance together with exhibits.[2]
[1] Ex P1
[2] Ex P2
The authority to institute a prosecution is provided by s 154 of the Long Service Leave Act 1992 (The LSL Act), relevantly, in these terms:
(1)A prosecution for an offence under this Act may only be brought by a person authorised by
(a) the Minister
(b) the Chief Administrator, if the Minister has authorised the Chief Administrator to give such an authorisation; or
(c) an officer of the Department of Innovation, Industry and Regional Development who the Minister has authorised to give such an authorisation
(2)…
(3)…
(4)In a prosecution for an offence under this Act, the Industrial Division of the Magistrates’ Court must presume, in the absence of evidence to the contrary, that the prosecutor is authorised to bring the prosecution
(5)…
The affidavit made by Ms Worthington disclosed that she is duly authorised to bring a prosecution under the LSL Act.[3] Her authority and the presumption of regularity was not challenged by the accused.
[3] Paragraph 2 of Affidavit of Jayne Worthington affirmed 14 May 2015
In prosecutions brought under the LSL Act, the Magistrates’ Court of Victoria is conferred with exclusive jurisdiction.[4]
[4] Section 153 (1) and (2) of the Long Service Leave Act 1992
The combined effect of the affidavits to which I have referred, is to identify in chronological order the relevant details of both Ms Scorah’s employment with the accused and following on from her employment, the bringing forward of her complaint to the Informant, including correspondence that passed between the Informant and the accused. None of the affidavit material was objected to by the accused.
Both deponents of the affidavits were made available by the Informant for cross-examination. They were called by the Informant and attested to the truthfulness of the matters contained in their affidavits. Miss Worthington was not cross-examined. The cross-examination of Ms Scorah was scant and the one question asked of her did not touch upon any matter of contention as far as the facts of the prosecution is concerned.
The defence to the charge relied upon by the accused is that Ms Scorah is not entitled to the benefit of long service leave and was not entitled to the provision of long service leave at all. The accused says that Ms Scorah fell outside the provision for conferral of long service leave pursuant to s 7 of the LSL Act.

The salient facts

Ms Scorah was employed continuously by the one employer within the meaning of s 60 (3) of the LSL Act from 2 September 2002 until 7 December 2012[5]. Neither by way of evidence nor by submission was the continuity of Ms Scorah’s employment contested by the accused. I am satisfied of that fact.
[5] Section 60 is concerned with certain situations in which an employee will be regarded as having been employed by the one employer, even though the employee may have worked over the relevant period of time for more than one employer in the strict legal sense.
The accused was Ms Scorah’s employer at the date her employment ceased on 7 December 2012. Again there was no contest about that fact. I find that was the case.
Ms Scorah said that during the period of her employment she did not take any long service leave and she was not paid any long service leave when her employment ceased. Her evidence about these matters was not contested. I find that was the case.
Ms Scorah deposed that when she ceased employment on 7 December 2012 she did not receive any payment on account at all for long service. This is also accepted by the accused.
Ms Scorah acknowledged one matter of uncertainty in her evidence in chief namely the precise date that the accused commenced operating the law practice. When it was suggested by Mr Baume in cross-examination that it could have been in early 2006 and not the date deposed to she conceded as much. That difference in recollection is not material.

Ms Scorah agitates for payment on account of long service leave

On 13 February 2013 Ms Scorah wrote to the accused requesting payment of long service leave[6].
[6] Exhibit SCS-01 to Affidavit of Susan Charmaine Scorah sworn 12 May 2015
Section 160 (4) of the LSL Act provides:
Before proceedings may be started under this section, the employer must be given a written demand for the money owed.
Ms Scorah’s letter dated 13 February 2013 constitutes a sufficiency of compliance with the statutory obligation expressed in s 160(4) of the LSL Act[7] if there be any doubt on that score.
[7] Section 160(4) provides that:
“Before proceedings may be started under this section, the employer must be given a written demand for the money owed”.
The accused wrote to Ms Scorah and the Informant about the claim for long service leave. The correspondence on the issue is exhibited to Ms Worthington’s affidavit. A reading of the correspondence identifies that the accused made allegations against Ms Scorah including that she received overpayments in the course of her employment, that such amounts of overpayments were either expressly or impliedly to be applied, if not towards long service leave, then any such other obligation as might be found owing by him and as well threatened the commencement of proceedings to recover back the amount of such overpayments. As I have said these diverse allegations raised by the accused in his correspondence were not pursued by him as part of a defence to the charge.

The accused testifies

Mr Joseph testified. His evidence was not illustrative or informative of any of the matters asserted by way of defence to the charge. He testified that he ‘knew nothing about how the LSL Act would have applied to Ms Scorah’. He said that [the LSL Act] ‘was not something …I did not give consideration to [it] applying to her’. He accepted there was correspondence from Ms Scorah to him prior in time to the office of the Informant writing to him. He said, ‘I have really forgotten what I put in my correspondence to her [Ms Scorah]’. He said that having received correspondence from Ms Worthington he reacted by looking to see where the authority existed to support the demand made on him and after looking at the LSL Act he formed a belief that it did not apply to Ms Scorah.
Mr Hanks’s cross-examination of the accused was brief. The accused agreed that Ms Scorah had not been confronted in cross-examination with any matters in the nature of the arguments he had advanced against her in his correspondence to her or to the Informant prior to the commencement of the prosecution.

Defence

Mr Baume referred to s1 of the LSL Act containing the following expression of purpose:
The purpose of this Act is to make provision with respect to the long service leave entitlements of certain[8] employees.
[8] Emphasis added
The accused placed reliance on the use of the word ‘certain’ as disclosing an intention on the part of the legislature to impliedly prescribe a class of recipients to long service leave under the LSL Act. The accused in amplification of his ground of defence referred to s 7 of the LSL Act which is headed, ‘Application of Act’ and is expressed as follows:
(1)This Act applies to
(a)a person appointed under section Division 5, 6, 7 or 8 of part 3 of the Victoria Police Act 2013; and
(b)A person appointed as a police reservist under section 103 of the Police Regulation Act 1958 as in force immediately before the commencement of section 282 of the Victoria Police Act 2013.
(2)A person or body, corporate or unincorporate, nominated by the Governor in Council as the employer of a person referred to in subsection (1) must be taken to be that person’s employer for the purposes of this Act. The nominated employer may nominate a representative who must be taken to be the employer’s representative for the purposes of this Act.
(3)Subject to section 83 of the Public Sector Management Act 1992, this Act also applies to officers and employees and Ministerial offices and Parliamentary advisers and judicial employees within the meaning of that Act and to any person not covered by a Federal award who holds a position on the staff of the declared authority within the meaning of that Act.
(4)A person or body, corporate or unincorporate, nominated by the Governor in Council as the employer of the person referred to in subsection (4) or (4A) (not being an executive officer under a contract of employment within the meaning of Part 4 of the Public Sector Management Act 1992) must be taken to be that person’s employer for the purposes of this Act. The nominated employer may nominate a representative who must be taken to be the employer’s representative for the purposes of this Act.
Thus, the accused submitted, the use of the phrase ‘certain employees’ and the application of s 7 to the persons, things and officers specified in sub-sections 7 (3), (4) and (5) of the LSL Act when taken in combination should be construed such as to exclude Ms Scorah from accruing entitlement to long service leave.
In my judgment the language of ss 1 and 7 of the LSL Act is not language which limits the category of recipients to long service leave in Victoria. I am satisfied to the contrary and furthermore that the language used supports an intention (and, moreover, one borne out by a history of long service leave provisions in Victoria) to enlarge the class of persons engaged in various employment for whom an accumulation of an entitlement to long service leave will apply.
Section 7 of the LSL Act does not comprise a class of persons to whom the entitlement is conferred. Rather s 7 is expressed to apply the benefit of long service leave to particular persons appointed under particular legislative instruments or by the Governor-in-Council for whom employer status is deemed in order to receive the benefit of the entitlement to long service leave under the LSL Act.

Various provisions of the LSL Act

Section 56 of the LSL Act provides:
An employee is entitled to-
(a) 13 weeks of long service leave on ordinary pay on completing 15 years of continuous employment with one employer; and
(b) 4 1/3 weeks of long service leave on ordinary pay on completing each period of 5 years of continuous employment with that employer after the first 15 years of continuous employment with that employer
Section 56A of the LSL Act makes provision for long service leave after 10 years.
Section 57 of the LSL Act makes provision for an additional entitlement to long service leave if employment stops after 15 years.
Section 58 of the LSL Act makes basic provision for entitlement to long service leave if a workers’ employment stops after 7 years and it is the application of this provision that will apply if the accused’s defence to the charge fails. It provides in these terms:
(1)This section only applies if an employee’s employment is ended and the employee has completed at least 7, but less than 15, years of continuous employment with one employer.
(2)The employee is entitled to an amount of long service leave equal to 1/60^th of the period of his or her continuous employment.
Although Ms Scorah was employed by different operators of the law firm nonetheless for the purposes of the LSL Act, she was employed by one employer. Her circumstance is regulated therefore by s 60 of the LSL Act. The accused did not contest that Ms Scorah’s employment with him although not for the entirety of the period the subject of the calculation for an arrears of long service leave, was employment for the purposes of s 60 of the LSL Act and therefore that her employment was with “one employer”.
Section 72 of the LSL Act is an important provision. It is headed: “What is to happen if employment ends before leave is taken” and states:
(1) If the employment of an employee ends before he or she has taken all the long service leave to which he or she is entitled, the employee is to be regarded as having started to take his or her leave on the day the employment ended.
(2) On that day the employee’s employer must pay the employee the full amount of the employee’s long service leave entitlements as at that day.
Penalty: 20 penalty units.
Section 79 of the LSL Act prohibits any contracting out of the obligations otherwise arising for the provision of long service leave and s74 creates an offence and prohibits payments in lieu to an employee of long service leave.
Mr Hanks took me to each of the relevant statutory enactments and particularly to the language of each that led to the LSL Act in its current iteration and that was relevant to Ms Scorah at the time of this prosecution.

The evolution of long service leave in Victoria[9]

[9] As far as the history of long service leave in Victoria is concerned, it is very helpfully provided in the judgment of Dodds-Streeton J in Melbourne Cricket Club v Francis Clohesy [2005] VSC 29 at [26 to 37].

By 1953 many employees in Victoria of State and Commonwealth Government Departments, statutory corporations and certain private employers were recorded as having entitlement to long service leave.
In 1953 that the Victorian Parliament enacted the Factories and Shops (Long Service Leave) Act 1953 (‘the 1953 Act’). Section 7 of the 1953 Act provided:
(1) subject to this Act every worker shall be entitled to long service leave on ordinary pay in respect of continuous employment with one and the same employer.
(2) the amount of such entitlement shall be-
(a) on the completion by worker 20 years continuous employment with his employer-13 weeks long service leave and thereafter an additional 3 ¼ weeks long service leave on the completion of each additional five years of continuous employment with such employer.
The term “Worker” was defined in s 2 of the 1953 Act to mean:
any person employed by any employer to do any work for hire or reward and includes an apprentice and any other person whose contract of employment requires him to learn or to be taught any occupation.
The term “Employer” was defined to mean:
any person employing and worker and includes the Crown.
Sections 3 and 7 of the 1953 Act were re-enacted, without alteration as ss 154 and 151 respectively of the Labour and Industry Act 1953 and subsequently the Labour and Industry Act 1958 (‘the 1958 Act’), both of which consolidated a range of legislation concerning industrial and employment issues.
Long Service Leave provisions contained in the 1958 Act were repealed in 1979, and ss 154 and 151 of the 1958 Act were re-enacted as ss 67 and 65 respectively in the Industrial Relations Act 1979 (‘the 1979 Act’).
The 1979 Act made minor adjustments to the periods required to establish eligibility for long service leave. However, all other relevant aspects of the provisions remained substantially unaltered. Neither the explanatory notes accompanying the Industrial Relations Bill 1979 nor the Second Reading speech to the Legislative Assembly on the introduction of the Bill, elaborated upon the basis of entitlement to long service leave.
The 1979 Act provided for long service leave in Part V11. Although it provided no definition of “Employee,” “Employer” was defined comprehensively to mean:
…a person employing a worker and includes the Crown.
Nothing expressed in the 1979 Act gave any indication of a narrowing of the entitlement to long service leave and the comprehensive definition of “Employer” would not support such a view.
Mr Hanks directed me to the Public Service Act 1974 and, in particular, to Part 111, Division 4. Section 47 of the Public Service Act was expressed as follows:
Every officer and employee in the public service who has served for ten years shall be entitled in accordance with the regulations to be granted by the Board three months’ long service leave with pay …
For present purposes, all that need be commented on as regards s 47 of the Public Service Act 1974 is that it contained a legislatively imposed more generous entitlement to the period of employment required in order to qualify for long service leave than the period provided for in the Industrial Relations Act 1979.
The 1979 Act was repealed by the Employee Relations Act 1992 (‘the 1992 Act’). It is in the structure of the 1992 Act that one can readily recognise the form of the LSL Act. Section 7 was headed, ‘Application of Act’ and, as with the LSL Act, but unlike s 7 of it, s 7 of the 1992 Act dealt with the circumstances of one person, namely a person appointed under s 8 of the Police Regulation Act 1958. I agree with Mr Hanks’s submission that the operation of s 7 in the 1992 Act indicated a parliamentary intention that other than a person appointed under s8 of the Police Regulation Act 1958 to whom s 7 was directed to in its application that public service employees would be provided for by way of the provision of long service leave by the Public Service Act 1974.
The Explanatory Memorandum to the Employee Relations Bill in addressing preliminary matters referred to Clause 7 and stated that it “applies the Bill to certain people appointed under the Police Regulation Act 1958”. However, there is no warrant to interpret that language as intended to have the effect that the panoply of provisions contained in the Bill, of which long service leave was but one, was upon the Bill’s enactment intended to confer coverage only to that class of person appointed under the Police Regulation Act[10].
[10] The inclusion is not surprising given historical litigious controversies about the status of police for a raft of employment related concepts
A basic entitlement to long service leave was re-enacted in Part V Division 6 of the 1992 Act in particular, s 56. The entitlement was for 13 weeks of long service leave on completing 15 years of continuous employment with one employer[11].
[11] S 56 of the 1992 Act headed ‘Basic entitlement to long service leave’ provided:
In the 1992 Act there were no substantive changes to definitions. Section 59 replaced the term “worker” with the term “employee” but it remained a comprehensive definition. It amounted to a “means and includes definition”. The definition of “employer” was inclusive but picked up by s 60 a person who “was not an employer at the time of the transfer”. Continuous employment and the deeming of the same in specified circumstances was enacted as s 62 of the 1992 Act.

The Public Sector Management Act 1992 was enacted and its objects were expressed to include:
(a)To enable Victorian public sector employees to be brought under the general industrial framework established by the Employee Relations Act 1992, on a similar footing to employees in the private sector
(b)…
(c)…
(d)…
(e)to repeal the Public Service Act 1974[12] and make consequential amendments to the Employee Relations Act 1992…
[12] The Public Service Act 1974 which had made provision for long service leave to public sector employees was repealed by s 109 of the Public Sector Management Act 1992
The objects can be regarded as picking up public sector employees and bringing them into the embrace of the Employee Relations Act which itself had a comprehensive system for settling industrial disputes as well as creating a right to the provision of long service leave.
Section 111 of the Public Sector Management Act also introduced two new sub-sections into s 7 of the Employee Relations Act 1992. Relevantly, a new sub-section 4 was to apply to officers and temporary employees and any person not covered by a federal award who holds a position on the staff of a declared authority within the Public Sector Management Act. The Explanatory Memorandum to the Public Sector Management Bill in relation to Clause 111[13] was expressed thus:
Clause 110 amends the Employee Relations Act 1992 to extend coverage[14] of the Act to public sector employees and provides for the Governor in Council to nominate persons or bodies as employers of public sector employees (excluding executive officers) for the purposes of the Employee Relations Act 1992.
[13] At the time of the Explanatory Memorandum what became s 111 was to be found in Clause 110
[14] Emphasis added
The extract from the Explanatory Memorandum is consistent with the construction advanced by the Informant that the history of long service leave in this State has been one of development and of the accretion of persons to whom the benefits of long service apply and not its inhibition or narrowing. There is no suggestion that s 7 of the LSL Act is intended to narrow as opposed to broaden the application to persons who were not hitherto employees or who had previously been covered by the Public Service Act.
As is well known there occurred in Victoria a comprehensive referral of powers in regard to the matter of conciliation and arbitration to settle industrial relation disputes to the Commonwealth to the extent not thought otherwise caught pursuant to s 51 (xxxv) of the Commonwealth Constitution. This was brought about by the Commonwealth Powers (Industrial Relations) Act 1996 (the Referral Act). Pursuant to s 9 of the referral enactment the Employee Relations Act 1992 was amended as set out in schedule 1 and these changes included:
·     to substitute the title of the Employee Relations Act to the Long Service Leave Act
·     to change the purpose to one “to make provisions with respect to the long service leave entitlements of certain employees”.
·     to repeal various sections
·     to make certain changes Division 6 Part 5
Under s 5 (1) (d) (b) of the Referral Act the provision to legislate on the subject of long service leave was excluded from the reference to the Commonwealth. Those provisions of the 1992 Employee Relations Act no longer required after the referral were repealed, leaving long service leave as the major remaining topic and was pursuant to s 9 of the Referral Act retitled the ‘Long Service Leave Act 1992’. The Referral Act did not, however, make any substantive amendment to the provisions of the 1992 Act relating to long service leave entitlement. Further, there was no more than a cursory reference in any of the extrinsic material to the subject of long service leave.
I am satisfied and find that from at least 1958 the Parliament of Victoria established and thereafter has maintained a system for the provision of long service leave for all employees in Victoria. The effect of legislation directed at achieving this end has through various alterations enlarged or brought into the tent additional persons who are treated as employees for the purpose of receiving the benefit of long service leave.
If private sector employers were excluded and the LSL Act applied only to a limited class of public sector employees then certain other sections of the LSL Act would be difficult to give meaning to such as s 60 (2)[15] in relation to employees of corporations or related corporations and s 60 (5) that deals with the change in ownership of a business from whom an employee who has been dismissed from their employment commences new employment within a short period of time.
[15] That in relation to the meaning of “one employer” refers to “an employee who is employed by a corporation or a related body corporate within the meaning of the Corporations Act
The conclusion I have reached is not inconsistent with or fail to take account of provision in the LSL Act that recognises the operative effect of other provisions and other industrial instruments that may provide an entitlement to long service leave and, in such circumstances, their primacy. But that is not an argument to defeat the liability of the accused to pay long service leave to Ms Scorah in the circumstances of her employment.
As just mentioned, the broad application of the conferral of an entitlement to long service leave to employees other than ‘public sector employees’ is reflected in s 65 of the LSL Act that excludes from ‘Division 6 – Long Service Leave’ ‘any employee’ who is entitled to long service leave under any Act other than the LSL Act or ‘any employee who is in a class of employees’ who pursuant to an employment agreement is regarded in the opinion of the Industrial Division of this Court is entitled to long service leave that is more favourable[16] than provided by the LSL Act. I note that it was not contended that s 65 operated as a basis of disentitlement to long service leave for Ms Scorah.
[16] Emphasis added
For the reasons expressed I reject the defence made to the charge by the accused and I accept the submissions as to construction advanced by the informant. That being the case, and the facts of Ms Scorah’s employment comprising the period of her employment and the wages payable to her at the date her employment ended I am satisfied beyond reasonable doubt of the commission by the accused of the charge.

The consequences of conviction

As a result of me finding the charge proved against the accused, the LSL Act provides a roadmap to the potential orders a court may make.
The entitlement that Ms Scorah has is derived by multiplying 8.93 (1/60^th of 535.57 weeks continuous service by her gross weekly rate of pay at the time her employment with the accused ended on 7 December 2012, which was $941.70. This results in a gross sum of $8,405.79
The LSL Act makes provision under s 160 (5) for interest to be paid ‘on top of any other amount that the employee is entitled to’ if certain matters are established to the satisfaction of the court. These matters are:
(a)The employer had reasonable notice of the employee’s claim; and
(b)The employer had no reasonable grounds on which to dispute the claim; and
(c)In the circumstances should have paid the claim without the need for proceedings being taken to establish the validity of the claim
These matters are expressed as cumulative and I am satisfied by the proofs in the proceeding that each sub-part has been made out by the informant and therefore it is proper to award interest.
On the basis of my findings expressed in the foregoing reasons the appropriate orders are:
i.A declaration that David Joseph, Trading as David Joseph & Co lawyers (“the accused”) has breached s. 72 (2) of the Long Service Leave Act (1992) (Vic)
ii.The accused pay Susan Charmaine Scorah of 20 Toohey Street, Badaginnie, the sum of $8,405.79 (gross) (“the outstanding entitlement”), pursuant to s 161 of the Long Service Leave Act (1992) (Vic)
iii.The accused pay Susan Charmaine Scorah interest on the outstanding entitlement pursuant to s 160 (5) of the Long Service Leave Act (1992) (Vic) in the sum of $2,916.34 calculated pursuant to the Penalty Interest Rate Act
iv.The accused pay the Informant’s costs on party/party basis fixed in the amount of $4,580.00[17]
[17] A detailed not of the breakdown of costs on the Magistrates’ Scale was provided by the Informant at the hearing
At the conclusion of the oral hearing I stated that in the event of a finding of guilt I would hear any matters that counsel for the accused wished to advance by way of the imposition of penalty. I have found the accused guilty of a breach of s 72 of the LSL Act. The penalty for such an offence is 20 penalty units which amount at the date of breach amounts to $2,503.80. That however is the maximum penalty. Section 72 is contained in Part 5 –Division 6 of the LSL Act. The penalty is not a civil penalty such as is provided for in other sections of the LSL Act, for example, ss92 arising from a breach of s 90 prohibiting termination of employment or prejudicial action to alter the position of an employee because of the exercise or intended exercise of rights under the LSL Act or s 88 arising from a breach of s 87 of the LSL Act where there has been a failure by an employer to disclose to an employee an unfair modification or removal of long service leave entitlements consequent upon an employee entering a new employment agreement.
Section 161 (1) of the LSL Act is the source of power that supports the order I have made that the accused pay MS Scorah the underpayment. The provision states:
If the Industrial Division of the Magistrates’ Court finds an employer guilty of an offence relating to the underpayment of an employee, the Court may order the employer to pay the employee any amount that the employee was underpaid and that is still owed to the employee, in addition to imposing a penalty for the offence.
It is not readily apparent if the words “in addition to imposing a penalty for the offence” is intended to mean the penalty imposed for a proved breach of s 72 of the LSL Act or a separate penalty. If the latter interpretation is applied then the penalty is at large whereas if it is intended to be confined to the former then the maximum penalty is set at 20 penalty units.
The Informant did not address the matter and neither did counsel for the accused. The Informant confined the relief sought in the prosecution to the imposition of the penalty expressed for a proved offence under s 72 and, therefore, on that basis I will confine the scope of the available penalty in that way. Section 161(4) of the LSL Act states:
An order under this section may be enforced as if it were an order made by the Court in a civil proceeding. However, if any amount remains to be paid after all reasonable means of civil enforcement have been tried, the order may be enforced as if it were a fine imposed by the Court.
I will however now hear counsel for the accused on any matter he seeks to put by way of the disposition on penalty as a result of me having found the charge proved.

‘An employee is entitled to-

(a)13 weeks of long service leave on ordinary pay on completing 15 years of continuous employment with one employer; and

(b)4 1/3 weeks of long service leave on ordinary pay on completing each period of 5 years of continuous employment with that employer after the first 15 years of continuous employment with that employer.’

(c)