Optus Administration Pty Ltd v Saluwadana - [2023] VSCA 266

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0062

OPTUS ADMINISTRATION PTY LTD (ACN 055 136 804)	Applicant
v
NAJ SALUWADANA	First Respondent
MAGISTRATES’ COURT OF VICTORIA	Second Respondent

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JUDGES:	EMERTON P, TAYLOR and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 September 2023
DATE OF JUDGMENT:	3 November 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 266
JUDGMENT APPEALED FROM:	[2023] VSC 243 (Richards J)

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STATUTORY INTERPRETATION – Company charged with failure to pay former employees’ full amount of long service leave entitlements accrued under statute – Where charges initially particularised as specific offences occurring on date employment ended – Magistrate granted leave to amend charges – Charges subsequently particularised as continuing offences to date outstanding long service leave entitlements paid – Company sought judicial review of magistrate’s decision and order – Primary judge dismissed proceeding – Whether s 9(2) of Long Service Leave Act 2018 creates continuing offence – Leave to appeal refused.

Long Service Leave Act 2018, ss 9, 36; Long Service Leave Act 1992, s 72; Sentencing Act 1991, s 111.

Joseph v Worthington (2018) 272 A Crim R 292, distinguished – Solicitor to the Board of Trade v Ernest [1920] 1 KB 816; Jones v Lorne Saw Mills Pty Ltd [1923] VLR 58, considered – Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, applied.

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Counsel
Applicant:	Ms F Gordon KC and Mr M Minucci
First Respondent:	Mr E Nekvapil SC and Ms D Price
Second Respondent:	No appearance
Solicitors
Applicant:	Ashurst
First Respondent:	Wage Inspectorate Victoria
Second Respondent	No appearance

EMERTON P
TAYLOR JA
KAYE JA:

In March 2021, Naj Saluwadana of the Wage Inspectorate Victoria (‘WIV’) charged Optus Administration Pty Ltd with five offences under s 9(2) of the Long Service Leave Act 2018 (‘Act’), alleging that Optus had failed to pay five former employees the full amount of their long service leave entitlements.
The charges against Optus were initially particularised as specific offences that occurred on the date upon which the employment of each employee ended. However, WIV subsequently sought to amend the charges to particularise the offences as continuing offences that occurred between the date on which each employee ceased to be employed by Optus and the date on which it paid their outstanding long service leave entitlements.
Optus opposed the amendment of the charges, but, on 17 December 2021, the magistrate gave leave to amend the charges. His Honour published detailed reasons for his decision on 27 January 2022.
The charge sheet as originally filed on 30 March 2021 contained five charges, the first of which read:
1. On 31 March 2020, at Pascoe Vale South in the State of Victoria, Optus Administration Pty Ltd (Optus) contravened s 9(2) of the Long Service Leave Act 2018 by failing to pay Lea Runas the full amount of their long service leave entitlements…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] VSCA 266
Decision Date: 3 November 2023

CaseChat Overview and Summary

In the matter of Optus Administration Pty Ltd v Saluwadana, the court was asked to consider the statutory interpretation of the Long Service Leave Act 2018. Optus Administration, a company, was charged with offences related to its failure to pay former employees the full amount of their long service leave entitlements accrued under the statute. Initially, the charges were particularised as offences occurring on the date the employees' employment ended. However, the magistrate allowed Optus to amend the charges, specifying them as continuing offences until the outstanding long service leave entitlements were paid. Optus then sought judicial review of the magistrate's decision and order to amend the charges. The primary judge dismissed the proceeding, finding that section 9(2) of the Long Service Leave Act 2018 creates a continuing offence.

The central legal issue before the court was whether the Long Service Leave Act 2018 created a continuing offence that could be charged up until the outstanding long service leave entitlements were paid. Optus argued that the offence was a one-off event occurring on the date of employment termination, and thus the magistrate should not have allowed the amendment of the charges. The court examined relevant statutory provisions and case law to determine the nature of the offence under the Long Service Leave Act 2018. It considered the principles of statutory interpretation and the nature of continuing offences, drawing on authorities such as Project Blue Sky Inc v Australian Broadcasting Authority and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue. The court concluded that the statute did indeed create a continuing offence.

The court's reasoning was based on the language and structure of the Long Service Leave Act 2018, which imposed an ongoing obligation on employers to pay long service leave entitlements. The court found that the offence under section 9(2) was not limited to the date of employment termination, but rather continued until the outstanding entitlements were paid. The amendment of the charges by the magistrate was therefore permissible under section 111 of the Sentencing Act 1991. The primary judge's decision to dismiss the judicial review proceeding was upheld, and Optus's application for leave to appeal was refused.

The final orders of the court were that the proposed ground of appeal was not made out and that leave to appeal would be refused. This decision confirmed that the Long Service Leave Act 2018 creates a continuing offence, allowing for charges to be amended to reflect the ongoing nature of the offence until the outstanding entitlements are paid.

Orders

Orders of the court

The proposed ground of appeal is not made out. Leave to appeal will be refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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