Optus Administration Pty Ltd v Saluwadana
[2023] VSC 243
•11 May 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 00195
| OPTUS ADMINISTRATION PTY LTD (ACN 055 136 804) | Plaintiff |
| v | |
| NAJ SALUWADANA | First Defendant |
| and | |
| MAGISTRATES’ COURT OF VICTORIA | Second Defendant |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 March 2023 |
DATE OF JUDGMENT: | 11 May 2023 |
CASE MAY BE CITED AS: | Optus Administration Pty Ltd v Saluwadana |
MEDIUM NEUTRAL CITATION: | [2023] VSC 243 |
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ADMINISTRATIVE LAW — Judicial review — Statutory interpretation — Decision of the Magistrates’ Court of Victoria — Whether magistrate erred in concluding that s 9(2) of the Long Service Leave Act 2018 (Vic) is capable of being alleged and particularised as a continuing offence — Whether presumption of re-enactment applies to equivalent provisions in the Long Service Leave Act 1992 (Vic) and Long Service Leave Act 2018 (Vic) — No error established — Proceeding dismissed — Long Service Leave Act 2018 (Vic), s 9(2) — Long Service Leave Act 1992 (Vic), s 72(2) — Joseph v Worthington [2018] VSCA 102; (2018) 272 A Crim R 292.
CRIMINAL LAW — GENERAL MATTERS — Other general matters — Penalty for employer that failed to pay employee full amount of long service leave entitlement on the day that employment ended — Whether penalty provision under s 9(2) of the Long Service Leave Act 2018 (Vic) creates a specific offence or a continuing offence — Penalty provision under s 9(2) creates a continuing offence — Long Service Leave Act 2018 (Vic), s 9(2) — Long Service Leave Act 1992 (Vic), s 72(2) — Joseph v Worthington [2018] VSCA 102; (2018) 272 A Crim R 292.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Game SC with Mr M Minucci | Ashurst Australia |
| For the First Defendant | Ms D Price | Matthew Hocking, Victorian Government Solicitor |
| For the Second Defendant | No appearance |
HER HONOUR:
On 30 March 2021, Naj Saluwadana of the Wage Inspectorate Victoria filed a charge‑sheet with the Magistrates’ Court of Victoria, charging Optus Administration Pty Ltd with five offences under s 9(2) of the Long Service Leave Act 2018 (Vic) (LSL Act). The charge-sheet alleged that Optus had failed to pay five former employees the full amount of their long service leave entitlements. The charges were initially particularised as specific offences that occurred on the date each employee’s employment ended.
The Wage Inspectorate 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. On 17 December 2021, Magistrate Foster gave leave to amend the charges, for reasons that were published on 27 January 2022.[1]
[1]Saluwadana v Optus Administration Pty Ltd [2022] VMC 2 (Reasons).
In this proceeding, Optus seeks judicial review of the magistrate’s decision and order made on 17 December 2021. It contends that the decision to permit the amendment involved jurisdictional error, and the amended charge-sheet does not disclose a valid charge, because s 9(2) of the LSL Act was not capable of being alleged and particularised as a continuing offence.[2] It seeks an order in the nature of certiorari, quashing the magistrate’s decision and order to grant leave to amend the charge-sheet, and an order in the nature of mandamus remitting the amendment application to the Magistrates’ Court to be determined according to law.
[2]Optus contended in the alternative that the Reasons revealed error of law on the face of the record. This ground was not pressed at trial: Transcript, 17 March 2023, 2:18–3:5, 8:10–30.
The proceeding is defended by the Wage Inspectorate, which maintains that the charges under s 9(2) of the LSL Act can be pleaded and particularised as continuing offences. The Magistrates’ Court filed a submitting appearance and took no active role in the proceeding.[3]
[3]In accordance with the principle in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, 35–6.
For the reasons that follow, the magistrate’s decision and order were free from error, and so the proceeding must be dismissed.
Relevant provisions
The LSL Act came into effect on 1 November 2018, repealing the former Long Service Leave Act 1992 (Vic) (1992 Act). Section 6 provides that an employee who completes seven years of continuous employment with one employer is entitled to an amount of long service leave on ordinary pay equal to one-sixtieth of the employee’s total period of continuous employment. The meanings of ‘one employer’, ‘continuous employment’, and ‘ordinary pay’ are explained in ss 11, 12 and 15 respectively.
At the relevant times, s 9 of the LSL Act provided:
What happens if employment ends before leave is taken?
(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.
Penalty: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.
Note
Section 43 applies to an offence against this subsection.[4]
[4]Section 43 provides for accessorial criminal liability of officers of bodies corporate that commit offences against certain provisions of the LSL Act.
The equivalent provision in the 1992 Act was s 72, which provided:
What is to happen if employment ends before leave taken
(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 entitlement as at that day.
Penalty: 20 penalty units.
(3) An employee’s long service leave entitlement under this section includes any entitlement that accrued as a result of the ending of the employee’s employment.
Section 9 of the LSL Act has now been amended to remove any doubt that s 9(2) provides for a continuing offence. The amendments made by s 75 of the Industrial Relations Legislation Amendment Act 2021 (Vic) include the insertion of a new s 9(3), which states that the obligation imposed in s 9(2) to pay an employee’s long service leave entitlement continues from the day on which the entitlement accrues until the employer has paid the full amount of the entitlement to the employee.
Section 111 of the Sentencing Act 1991 (Vic) explains the effect of the penalty provided in s 9(2) of the LSL Act and s 72(2) of the 1992 Act, as follows:
Location and effect of penalty provisions
A penalty set out at the foot of a provision of an Act, subordinate instrument or local law must, unless the context otherwise requires, be construed as indicating that a contravention (whether by act or omission) of the provision is an offence against the Act, subordinate instrument or local law punishable on a finding of guilt (with or without recording a conviction as required by section 7) by a penalty not exceeding that set out.
The power of the Magistrates’ Court to order that a charge-sheet be amended is found in s 8 of the Criminal Procedure Act 2009 (Vic). Section 8 provides:
Order for amendment of charge-sheet
(1) The Magistrates' Court at any time may order that a charge-sheet be amended in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to the accused.
(2) If a charge-sheet is amended by order under this section, the charge-sheet is to be treated as having been filed in the amended form for the purposes of the hearing and all proceedings connected with the hearing.
(3) An amendment of a charge-sheet that has the effect of charging a new offence cannot be made after the expiry of the period, if any, within which a proceeding for the offence may be commenced.
(4) If a limitation period applies to the offence charged in the charge-sheet, the charge-sheet may be amended after the expiry of the limitation period if—
(a) the charge-sheet before the amendment sufficiently disclosed the nature of the offence; and
(b) the amendment does not amount to the commencement of a proceeding for a new offence; and
(c) the amendment will not cause injustice to the accused.
The offence created by s 9(2) of the LSL Act is a summary offence,[5] and a proceeding for the offence must be commenced within 12 months after the date on which the offence is alleged to have been committed.[6]
[5]Sentencing Act 1991 (Vic), ss 109, 112.
[6]Criminal Procedure Act 2009 (Vic), s 7(1) (Criminal Procedure Act).
The charges and the amended charges
The charge-sheet 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 as at that date.
Particulars
a) Lea Runas was employed by Optus from 12 March 2013 to 31 March 2020.
b) As at 31 March 2020, Lea Runas was entitled to long service leave entitlements, equating to $6,293.93.
c) On 31 March 2020, Optus paid Lea Runas $5,275.39 in long service leave entitlements, being $1,018.54 less than their full entitlement.
The remaining charges followed the same format, in relation to four other former Optus employees. It was alleged that Optus contravened s 9(2) of the LSL Act:
(a) on 19 April 2020, by paying Nicole Laird $1,907.24 less than their full entitlement to long service leave, which equated to $4,661.32;
(b) on 24 April 2020, by paying Andrew Iskandar $652.68 less than their full entitlement to long service leave, which equated to $6,328.88;
(c) on 20 July 2020, by paying Casey Stevens $1,028.23 less than their full entitlement to long service leave, which equated to $1,321.83; and
(d) on 24 July 2020, 2020, by paying Sandhya Asha Maharaj $1,891.19 less than their full entitlement to long service leave, which equated to $3,730.93.
The summary of offences filed on 5 May 2021 alleged that the underpayments resulted from an inconsistency between the Optus Employment Partnership Agreement 2018 (Optus EA) and s 13(1)(b) of the LSL Act, in relation to the meaning of continuous service. While s 13(1)(b) provides that an amount of unpaid leave less than 52 weeks amounts to continuous service, the Optus EA provided that any period of unpaid leave in excess of five days did not amount to continuous service. By operation of s 23(1) of the LSL Act, a provision of an employment agreement that annuls, varies or excludes any provision of the LSL Act is of no effect.[7] The inconsistency came to light during an audit undertaken by the Wage Inspectorate in July 2020. The summary alleged that a subsequent investigation found that nine former Optus employees had been underpaid their long service leave entitlements. Optus was said to have paid the agreed amounts of the underpayments to all affected employees by 4 February 2021.
[7]See also LSL Act, s 3 (definition of ‘employment agreement’) and Fair Work Act 2009 (Cth), Pt 1-3, Div 2 – Interaction with State and Territory Laws.
Following the amendment of the charge-sheet on 17 December 2021, all five charges were particularised as continuing offences: The first amended charge now reads:
1. From
On31 March 2020 to 29 January 2021, 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 as at that date.Particulars
a) Lea Runas was employed by Optus from 12 March 2013 to 31 March 2020.
b) As at 31 March 2020, Lea Runas was entitled to long service leave entitlements, equating to $6,293.93.
c) On 31 March 2020, Optus paid Lea Runas $5,275.39 in long service leave entitlements, being $1,018.54 less than their full entitlement.
d) On 29 January 2021, Optus paid Lea Runas their full entitlement of long service leave.
Each of the other four charges was similarly amended to allege that the offence continued until 29 January 2021, when Optus paid the full entitlement of long service leave.
The magistrate’s reasons
The magistrate’s written reasons for allowing the amendments outlined the background to the application, and identified the two matters for determination:[8]
a.Whether the offence contained in s 9(2) of the LSL Act may be pleaded and particularised as an offence occurring on only one day, or as a continuing offence occurring over a period of time.
b.whether leave to amend the charges should be granted pursuant to s 8 of the Criminal Procedure Act 2009 (Vic) (the CPA).
[8]Reasons, [6].
In relation to the first matter, the magistrate set out s 9 of the LSL Act in its current form and as it was at the time of the alleged offences. His Honour also set out s 72 of the 1992 Act and referred to Joseph v Worthington,[9] in which the Court of Appeal held that s 72(2) of the 1992 Act was a ‘specific offence’ rather than a continuing one. After noting the Wage Inspectorate’s submission that Joseph v Worthington was not necessarily authority for the proposition that s 9(2) of the LSL Act could not be a continuing offence, the magistrate said:[10]
The two enactments are not one and the same. One of the purposes of the LSL Act was to repeal the 1992 Act. The LSL Act introduced new offences, and reframed existing offences. Most notably, it introduced the delineation between offences for which the maximum penalty is fixed, and those offences where the maximum penalty accrues for each day the offence continues. There was no such delineation in the 1992 Act. This legislative history indicates a substantial shift in the way in which offences relating to long service leave entitlements are treated. Proper construction of s 9(2) of the LSL Act therefore can only be done by consideration of the language of that section, and the text of the LSL Act as a whole.
[9][2018] VSCA 102; (2018) 272 A Crim R 292 (Joseph v Worthington).
[10]Reasons, [18].
The magistrate then set out the relevant principles of statutory interpretation, to the effect that the interpretive task begins with consideration of the text of the statute, while also having regard to its context and purpose.[11] His Honour referred to s 35 of the Interpretation of Legislation Act 1984 (Vic) and CIC Insurance Ltd v Bankstown Football Club Ltd[12] to emphasise the importance of both context and purpose in statutory interpretation.
[11]Reasons, [19]–[28].
[12](1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).
In relation to context, the magistrate outlined the legislative history of the LSL Act. He noted that it had repealed and replaced the 1992 Act, which had contained an equivalent provision in respect of payment of long service leave entitlements. While that provision was in terms not dissimilar to s 9, it did not stipulate that the offence was ‘continuing’. The magistrate then referred to the second reading speech and the explanatory memorandum for the LSL Act, saying:[13]
[13]Reasons, [33]–[37] (footnotes omitted).
As can be gleaned, the purpose of a new Act is to simplify understanding of the Act. To this end the refinement of language in the Act – and in s 9 – may be taken to be considered departure from the previous iteration of the LSL Act, and represents an increase in penalties as intended by Parliament, reflected in the comments above.
This view is further entrenched by the delineation between fixed and continuous offences as outlined in the submissions of the Wage Inspectorate Victoria (WIV).
In respect of the operation of s 9, the explanatory memorandum expressly addresses how the provision is to operate:
Clause 9 subclause (1) provides that if employment ends before the employee has taken all the leave they are entitled to, the employee is considered to have started long service leave on the day that the employment ended. This does not apply to a situation where the employee has died.
Subclause (2) provides that on the day that the employment ends the employer must pay the employee the full amount of the employee’s long service leave entitlement as of that date. A penalty of 12 penalty units (in the case of a natural person) or 60 penalty units (in the case of a body corporate) applies to this provision. As this is a “continuing offence” the penalty applies for each day during which the offence continues.
(emphasis added)
The intention of Parliament in the boldened text above could not be placed in plainer terms. It is clear that the creation of the continuing offence goes to the purpose articulated in the second reading speech, that is, to increase penalties to be comparable with current Victorian standards.
It is clear from a contextual reading of the legislation and the extrinsic material that s 9(2) of the LSL Act was intended to operate as a continuing offence.
The magistrate referred to the submission made by Optus, that the maximum penalty provision could not displace the clear meaning of the language of the offence provision itself, because a stream cannot rise higher than its source. While his Honour was initially attracted to that submission, he considered that it would offend the principle restated in Project Blue Sky Inc v Australian Broadcasting Authority,[14] that a court construing a statutory provision must strive to give meaning to every word of the provision. He could not accept the conclusion that the words in the penal aspect of the provision had no work to do.
[14](1998) 194 CLR 355, [71] (Project Blue Sky).
The magistrate also noted that Optus had advanced no authority to support its submission that the penalty aspect of the provision was, ‘at best, an aggravating factor to be taken into account’.[15] Nor could his Honour accept the argument that the phrase ‘on that day’ in s 9(2) rebuts any intended operation as a continuing offence. To read the provision in that way would be to accept it to be contradicting itself. That would be contrary to the principle that a legislative instrument must be construed on the basis that its provisions are intended to give effect to harmonious goals.
[15]Reasons, [43].
Next, the magistrate considered the submission made by Optus based on the presumption of re-enactment — that is, the presumption that when legislation is re‑enacted after being judicially interpreted, the legislature is taken to have approved that interpretation and to have intended that it should continue to be applied. The magistrate referred to the authorities of Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees,[16] Williams v Oataway,[17] ReDirector of Public Prosecutions Reference No 1 of 2019,[18] and Minister for Immigration and Border Protection v Kumar.[19] His Honour concluded from those authorities that the application of the presumption turns on the particular circumstances of the re‑enactment, having regard to the history of the specific statute to deduce legislative intent. He emphasised the observations made by the High Court in Kumar, that ‘the rule has typically been confined in its application to the re-enactment of a provision in identical terms’,[20] and was inapposite in a case where the legislature has deliberately employed different wording.
[16](1994) 181 CLR 96.
[17](2005) 11 VR 529.
[18](2021) 392 ALR 413; 95 ALJR 741 (DPP Reference No 1).
[19](2017) 260 CLR 367.
[20]Reasons, [60], quoting Kumar, [77].
The magistrate then set out his reasoning about the application of the presumption of re-enactment to s 9 of the LSL Act:[21]
[21]Reasons, [61]–[64] (footnotes omitted).
While one must accept that Joseph v Worthington denotes an interpretation of “on that day” as indicating a provision is a specific offence completed at a singular point in time, that is not necessarily the end of the matter insofar as s 9 of the LSL Act is concerned.
As was referred to in Joseph v Worthington, the construction of an offence as “continuing” is a matter that turns on the language of the provision in question, as stated in Jones v Lorne Saw Mills Pty Ltd:[22]
I have come to the conclusion that, even if sec. 21 of the Commonwealth Act, or sec. 210 of the Victorian Act, or both of them may apply, that there here was a continuing offence, and that the information, which, it will be noticed, alleges that the offence was committed in 1922, was warranted by the facts, and was in time. Most of the authorities are collected in Stone’s Justices’ Manual (43rd ed.), pp. 35 and 36, and Halsbury, Laws of England, vol. xix., p. 591. To them may be added Solicitor to the Board of Trade v. Ernest (p), citing Ex parte Burnby (q). Ernest’s Case, is I think, clearly distinguishable, and as Avory, J., says, there was nothing to indicate in the Act then under consideration that the offence was a continuing one. It is in reference to the case of furnishing a statement containing material particular known to be false that Avory J., uses the words:– “The ordinary way to treat an offence as a continuing offence is to provide a penalty for each day.”
But, apart from such a provision as to each day, a Statute may indicate by its general terms that an offence is or may be a continuing one, and by use of the expression ‘non-observance’, such is, I think, having regard to the objects of the Commonwealth Conciliation and Arbitration Act, as to ensuring the performance of awards, the case here. It is not necessary to say that every case of ‘non-observance’ falling under sec 44 of the Act implies that the offence is a continuous one. A case might be conceived in which the ‘non-observance’ would have relation to a specified or indicated day or time, and then this result would not follow. It is sufficient to say that, in my opinion, there was here just as much non-observance in 1922 as in 1920, and the information on its face is within time.
(emphasis added)
This passage, referred to in Joseph, clearly articulates two means by which a continuing offence is identifiable; an observation which is given neutral treatment in Joseph. In Jones, in the absence of explicit penalty, it was the characterisation of the offence as one concerned with ‘non-observance’ that led to the conclusion that it was a continuing one. Similarly, the provision with which Joseph was concerned contained no such explicit terms as to the nature of the offence, and thus the fundamental question was directed to whether the provision created an offence by reference to a specified date or time or on the other hand was directed to ‘non-observance’ of a continuing nature.
While similar, the provision concerned in Joseph is not in identical terms to s 9(2) of the LSL Act, and primacy must be given to the text of the provision itself, quite apart from being tied to a construction in a similar but not equivalent provision.
[22]Jones v Lorne Saw Mills Proprietary Ltd [1923] VLR 58, 64–65 (Jones v Lorne Saw Mills).
His Honour summarised his conclusions on the proper interpretation of s 9(2) of the LSL Act:[23]
[23]Reasons, [65]–[66].
The following conclusions may be drawn from my analysis of this matter:-
a. Primacy is to be given to legislative purpose and context when construing the LSL Act.
b. Any interpretation of the section must give meaning to every word of s 9(2), pursuant to accepted interpretive principle and authority;
c. The presumption of re-enactment, whilst not irrelevant, must yield to a proper reading of the text, including consideration of extrinsic materials in extracting purpose; and
d. Joseph v Worthington does not prevent a conclusion that s 9(2) may be interpreted as a continuing offence.
As a result of this analysis, I conclude that s 9(2) of the LSL Act is intended to operate as a “continuing offence”.
The second matter for determination was whether leave to amend the charges should be granted pursuant to s 8 of the Criminal Procedure Act. The magistrate concluded that the amendments would not have the effect of charging a new offence, and would involve no relevant injustice to Optus. On that basis, his Honour determined that leave should be granted to amend the charges.
No issue is taken with the magistrate’s reasoning and conclusions in relation to s 8 of the Criminal Procedure Act. Optus’ complaint in this proceeding is that the magistrate misconstrued s 9(2) of the LSL Act, by finding that it provided for a continuing offence.
Optus’ submissions
Optus summarised the relevant principles of statutory construction as follows:[24]
The interpretation of a statutory provision begins and ends with consideration of the statutory text.[25] The meaning of the text also requires consideration of its context, which includes the general purpose and policy of a provision.[26] The fact that a statute contains penal provisions is part of the relevant context in which it falls to be construed.[27] The history of the provision and extrinsic materials may assist in determining the meaning of the statutory text[28] and assist in divining the mischief to which the statutory text is directed,[29] but they cannot displace its clear meaning.[30] The words of a Minister must not be substituted for the text of the law,[31] and it is “always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law.”[32]
[24]Outline of submissions of the plaintiff dated 15 June 2022, [20].
[25]Referring to Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, [47] (Hayne, Heydon, Crennan and Kiefel JJ); Thiess v Collector of Customs (2014) 250 CLR 664, [22].
[26]Referring to Project Blue Sky, [70]; Alcan, [47].
[27]Referring to Alcan, [57].
[28]Referring to Thiess, [22].
[29]Referring to CIC Insurance, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).
[30]Referring to Alcan, [47].
[31]Referring to Re Bolton; Ex parte Bean (1987) 162 CLR 514 at 518 (Mason CJ, Wilson and Dawson JJ), and DC Pearce and RS Geddes, Statutory Interpretation in Australia (7th ed, 2011), [3.24].
[32]Referring to Re Bolton, 518.
According to Optus, the text of s 9(2) of the LSL Act clearly created a specific offence. It obliged an employer to pay an employee ‘on the day’ the employee’s employment ends the full amount of the employee’s long service leave entitlement ‘as at that day’. It said that the use of the definite article prior to the word ‘day’ indicated that the word ‘day’ was to be read as a reference to a single point in time — that is, a single day — rather than a reference to a period or span of dates. It argued that it was the failure to comply with the obligation in s 9(2) on the particular day that the employee’s employment ends that constituted the offence. The time period was an essential element of the offence, which was not extinguished by subsequent payment, and was not changed by continued non-payment.
Optus referred me to Sloggett v Adams[33] for an explanation of the distinction between a specific offence and a continuing offence, the test of the latter being ‘whether its gravamen is to be found in something which the offender can, at will, discontinue’.[34] Applying that test to s 9(2), Optus argued that an offender could not discontinue committing an offence under s 9(2) after the day on which the employee’s employment ends. It said that the offence crystallised on the non-payment of the full entitlement as at that day, and could not be discontinued by later payment.
[33](1953) 70 WN(NSW) 206 (Sloggett).
[34]Sloggett, 208 (Street CJ), quoting Ellis v Ellis (1896) P 251, 254.
Optus relied on the Court of Appeal’s conclusion in Joseph v Worthington that s 72(2) of the 1992 Act created a specific offence. It said that the elements of the two offences were relevantly identical, and were plainly stated in both provisions. It embraced the reasoning of Osborn JA, that an offence under s 72(2) of the 1992 Act ‘was complete on the day the employment ended and the required payment was not made’.[35] It said that this reasoning applied with equally persuasive force to s 9(2) of the LSL Act.
[35]Joseph v Worthington, [93] (Osborn JA).
In circumstances where the LSL Act was passed by the Victorian Parliament on 8 May 2018, after the Court of Appeal delivered judgment in Joseph v Worthington on 23 April 2018, Optus said that the re-enactment presumption applied.[36] It said that the legislature should be taken to have adopted the Court of Appeal’s construction of s 72(2) of the 1992 Act, and to have intended s 9(2) of the LSL Act to have the same meaning. Optus argued that the re-enactment presumption had special significance in the context of industrial relations legislation.[37]
[36]Referring to Re Alcan Australia Pty Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96, 106 and Fortress Credit Corporation (Australia) II Pty Ltd and Anor v Fletcher and Others (2015) 254 CLR 489, [15].
[37]Referring to Electrolux Home Products Pty Ltd v The Australian Workers Union (2004) 221 CLR 309, [81] (McHugh J).
In relation to context, Optus drew attention to the following matters:
(a) section 9(2) was a criminal offence provision;
(b) despite the fact that the LSL Act was intended to replace the 1992 Act, s 9(2) of the LSL Act was cast in almost identical language to s 72(2) of the 1992 Act, which had been construed by the Court of Appeal to be a specific offence;
(c) on its face, s 9(2) created a specific offence;
(d) the only textual indication that s 9(2) was intended to create a continuing offence was in the penalty provision, which should be treated as separate and distinct from the offence provision;
(e) the explanatory memorandum to the Long Service Bill 2017 identified that the legislature had subjectively intended s 9(2) to operate as a continuing offence, despite the text of the provision suggesting otherwise; and
(f) the legislature subsequently made substantial amendments to s 9, by way of s 75 of the Industrial Relations Legislation Amendment Act 2021 (Vic).
Optus said that the penalty provision at the foot of s 9(2) was the only reference in the text of the provision that suggested that it may have been intended to operate as a continuing offence. It submitted that s 111 of the Sentencing Act draws a distinction between a ‘provision’ and a ‘penalty set out at the foot of [that] provision’. It argued that the penalty provision is not the offence provision, and does nothing more than establish the maximum penalty for a contravention of the offence provision. It submitted that the words ‘for each day during which the offence continues’ in the penalty provision to s 9(2) were otiose, because there would be no occasion on which the offence could continue. It said that the language of the offence provision was intractable and that, even by striving to do so, those words could not be given meaning.[38]
[38]Referring to Project Blue Sky, [71] (McHugh, Gummow, Kirby and Hayne JJ).
The contextual indications that s 9(2) created a continuing offence were, Optus submitted, the result of a ‘misunderstanding’ on the part of the Victorian Parliament about the effect of the provision. It said that the misunderstanding may have arisen because, before the Court of Appeal gave judgment in Joseph v Worthington, s 72(2) of the 1992 Act had been understood to create a continuing offence.[39] Despite these contextual indications, Optus submitted that the unambiguous language of the offence provision left no room to construe s 9(2) as creating a continuing offence.
[39]Referring to Joseph v Worthington [2017] VSC 501, in which Derham AsJ found no error in the County Court’s determination that s 72(2) created a continuing offence that was not subject to the 12-month limitation period in s 7 of the Criminal Procedure Act.
Optus also relied on authorities to the effect that any ambiguity in a penal provision should be resolved in favour of the most lenient construction.[40] However, it accepted that the LSL Act also has a remedial or protective purpose.
[40]Referring to Byrne v McLeod (1934) 52 CLR 1; Beckwith v The Queen (1976) 135 CLR 569, 576 (Gibbs J); Sillery v The Queen (1981) 180 CLR 353, 360–1 (Murphy J); Walden v Hensler (1987) 163 CLR 561, 587 (Deane J); Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193, 210–1.
In relation to that purpose, Optus submitted that construing s 9(2) as creating a specific offence would be consistent with the particular purpose of s 9 of the LSL Act to impose an obligation on employers to pay employees their full entitlement to long service leave when their employment ended, under pain of criminal penalty. It said it would also be consistent with the broader purpose of the LSL Act, of making provision ‘with respect to the long service leave entitlements of certain employees, including public and private sector employees and police officers’.[41]
[41]Referring to LSL Act, s 1(a).
Wage Inspectorate’s submissions
The Wage Inspectorate commended the summary of principles of statutory construction in Joseph v Worthington.[42] It emphasised the modern approach to statutory interpretation, which requires that context in its widest sense be considered in the first instance, not only to resolve obvious ambiguity.[43] It reiterated the exhortation in Project Blue Sky, that ‘a court construing a statutory provision must strive to give meaning to every word of the provision’.[44]
[42]Joseph v Worthington, [19]–[22] (Osborn JA).
[43]Referring to Interpretation of Legislation Act 1984 (Vic), s 35 and CIC Insurance, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).
[44]Project Blue Sky, [71] (McHugh, Gummow, Kirby and Hayne JJ).
Joseph v Worthington was also said by the Wage Inspectorate to contain a useful discussion of the distinction between continuing and non-continuing offences, and the considerations identified in the relevant authorities.[45] It highlighted Cussen J’s observation in Jones v Lorne Sawmills Pty Ltd, to the effect that the ordinary way of creating a continuing offence was to provide a penalty for each day that it continued.[46] Where that indication is not present, the Wage Inspectorate accepted that ‘the authorities as a whole can be divided between those which characterise the relevant provision as one concerned with continuing “non-observance” or as one concerned with non-compliance with a specific requirement to meet a statutory time limit’.[47] It placed particular reliance on R v Industrial Appeals Court; Ex parte Barelli’s Bakeries Pty Ltd (Barelli),[48] in which a Full Court of this Court held that an obligation to pay wages at a prescribed time was not spent if payment was not made at that time — and that while the offence was complete if wages were not paid at the time they were due, the time element was extensible.[49]
[45]Joseph v Worthington, [45]–[50], [52]–[77] (Osborn JA), discussing Jones v Lorne Sawmills Pty Ltd [1923] VLR 58; Sloggett; R v Industrial Appeals Court; Ex parte Barelli’s Bakeries Pty Ltd [1965] VR 615 (Barelli); Welsh v Cornfoot [1973] VR 21; Brammer v Deery Hotels Pty Ltd (1974) 22 FLR 276; Cox v Ketchell [1973] Tas SR 33; and R v Industrial Appeals Court; Ex parte Circle Realty Pty Ltd [1980] VR 459.
[46]Jones v Lorne Sawmills, 65.
[47]Referring to Joseph v Worthington, [50] (Osborn JA).
[48][1965] VR 615.
[49]Barelli, 622 (O’Bryan and Gillard JJ).
The Wage Inspectorate submitted that proper construction of s 9(2) of the LSL Act must begin by considering the language of that section and the text of the LSL Act as a whole, in its context. It identified the relevant context as including the general purpose and policy of the provision, in particular the mischief it is seeking to remedy, legislative history, and extrinsic material such as explanatory memoranda. It argued that the words ‘on the day’ and ‘as at that day’ in s 9(2) did not preclude it being read as creating a continuing obligation. It put the argument as follows:
(a) The phrase ‘on the day’ merely specified when the employer must pay the employee their outstanding long service leave entitlements, and a failure to pay at that time was an offence. However, the duration of the offence could continue until the payment was made, as was the case in Barelli.
(b) The phrase ‘as at that day’ does not impose a temporal limit on the offence, but simply relates to the calculation of the employee’s long service leave entitlement.
Unsurprisingly, the Wage Inspectorate placed great reliance on the penalties prescribed in s 9(2) ‘for each day during which the offence continues’. It submitted that this penalty provision made it clear, in the ordinary way identified in Jones v Lorne Sawmills, that contravention of s 9(2) is a continuing offence. The Wage Inspectorate said that the penalty, which is set out at the foot of s 9(2), together with s 111 of the Sentencing Act, did the following things:
(a) it indicates that contravention of the provision is an offence;
(b) it sets the applicable maximum penalty;
(c) it determines whether the offence is summary or indictable, according to the classification in s 112 of the Sentencing Act, which in turn determines which court has jurisdiction to hear a charge under the provision; and
(d) it indicates that an offence against s 9(2) continues for each day that the employer fails to pay the full amount of an employee’s long service leave entitlement, from the date the employment ends and continuing until the full amount is paid.
The Wage Inspectorate submitted that the task of the Court is to interpret every word of s 9(2), including the words of the penalty at the foot of the provision. It argued that those words have to be read together with the offence part of the provision, and could not be overlooked as some functionless legislative vestige. It said that there was no reason to divorce the offence and the penalty parts of the submission, and no authority that supported Optus’ submission that the offence and the penalty were separate and distinct.
In relation to the language and purpose of the LSL Act as a whole, the Wage Inspectorate submitted that there is a clear delineation in the LSL Act between offences which are complete on a single day, and those of a continuing nature. It said that the delineation was clear from the wording of each offence provision, read together with the penalty part of the provision. It submitted that in addition to s 9(2), ss 10, 20, 21 and 36 all create continuing offences by prescribing a penalty for each day during which the offence continues.
The Wage Inspectorate contended that reading s 9(2) as a continuing offence would be consistent with both the broad purpose of the LSL Act and the mischief that the provision sought to remedy — namely, employers failing to perform their legal obligation to pay employees their full long service leave entitlements. A continuing offence would place additional pressure on employers to comply with their obligations, and so would best promote the purpose and objects of the LSL Act.
The Wage Inspectorate referred to the extrinsic material for the LSL Act, in particular the explanatory memorandum, which it said strongly supported the submission that an offence against s 9(2) could be a continuing one. The statement in the explanatory memorandum that s 9(2) ‘is a “continuing offence”’[50] could not make Parliament’s intention clearer.
[50]Referring to Explanatory Memorandum, Long Service Leave Bill 2017 (Vic) 3.
As to Optus’ reliance on the presumption of re-enactment, the Wage Inspectorate submitted that the presumption was displaced in this case, by the following considerations:
(a) section 9(2) of the LSL Act is not identical to s 72(2) of the 1992 Act, in particular because it has a different penalty provision;
(b) the context and structure of the LSL Act is quite different to that of the 1992 Act, including because the LSL Act clearly delineates between specific and continuing offences, while the 1992 Act did not;
(c) the Long Service Bill 2017 was introduced into Parliament on 23 August 2017, passed the Legislative Assembly on 8 March 2018, and was before the Legislative Council when the Court of Appeal gave judgment in Joseph v Worthington; and
(d) the 2021 amendments to s 9 were said in the accompanying explanatory memorandum to ‘confirm’ that s 9(2) is a continuing offence.
Consideration
The words of the first sentence of s 9(2) of the LSL Act oblige an employer to pay an employee the full amount of the employee’s long service leave on the day the employee’s employment ends. While the words of that sentence are very similar to those of the first sentence of s 72(2) of the LSL Act, they are not identical. Significantly, the context of the two provisions is quite different. Because words take meaning from their context, the same words can carry different meanings in different contexts. The modern approach to statutory interpretation insists that context be considered in the first instance, and in its widest sense.[51]
[51]CIC Insurance, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); R v A2 (2019) 269 CLR 507, [32]–[33] (Kiefel CJ and Keane J).
The second part of s 9(2) of the LSL Act — the penalty set out at the foot of the provision — is an obvious and important difference that distinguishes it from s 72(2) of the 1992 Act. The difference is both textual and contextual. It is textual because it concerns the text of the entire provision; it is contextual because the penalty immediately follows the words of obligation in the first part of the provision.
The penalty part of the provision does more than merely stipulate the maximum penalty that may be imposed for a contravention. As provided in s 111 of the Sentencing Act, it indicates that a contravention of the provision is an offence. Without the penalty part of s 9(2), a contravention of the obligation to pay an employee’s full long service leave entitlement on the day their employment ends would not be a criminal offence. Contrary to the submission of Optus, the penalty is not separate and distinct from the offence created by s 9(2) — it is an integral part of it.
In my view, the penalty set out at the foot of s 9(2) is decisive of the question whether the offence is specific or continuing. It is settled that the ‘ordinary way to treat an offence as a continuing offence is to provide a penalty for each day during which the offence continues’.[52] In a provision that follows that drafting convention, it is clear that the legislature intended to create a continuing offence. It is only where the convention is not followed that there is a need to engage in the analysis undertaken in cases such as Sloggett v Adams and Joseph v Worthington, in order to determine whether the offence is continuing or complete on a specific day. By providing a penalty ‘for each day during which the offence continues’, Parliament indicated in the ordinary way that an offence against s 9(2) was a continuing offence. It used the same drafting convention throughout the LSL Act to delineate between specific offences[53] and continuing offences.[54]
[52]Jones v Lorne Saw Mills, 65, quoting Solicitor to the Board of Trade v Ernest [1920] 1 KB 816, 823 (Avory J).
[53]LSL Act, ss 30(3), 33(1), 34(2), 35(1), 37(2)–(6), 38(1)–(2), and 50(1).
[54]LSL Act, ss 10(1), 20(1)–(2), 21(2), and 36(1)–(4), all of which provide a penalty ‘for each day during which the offence continues’.
Indeed, s 9(2) could only be construed as creating a specific offence if the words ‘for each day during which the offence continues’ are ignored or, as Optus put it, treated as otiose. To give those words no meaning, and no work to do, would be contrary to the principle that ‘a court construing a statutory provision must strive to give meaning to every word of the provision’.[55]
[55]Project Blue Sky, [71] (McHugh, Gummow, Kirby and Hayne JJ).
I do not accept Optus’ submission that the words of the first part of s 9(2) are intractable and cannot be interpreted to create a continuing offence, even if one strives to give meaning to the words ‘for each day during which the offence continues’ in the penalty part of the provision. In that context, the words ‘on the day’ and ‘as at that day’ in s 9(2) are capable of bearing a different meaning from the meaning given to the equivalent words in Joseph v Worthington. In light of Parliament’s clear intention to create a continuing offence, the phrase ‘on the day’ can be understood to specify when an employer must pay outstanding long service leave entitlements to an employee, but not the day on which the offence is complete. The words ‘as at that day’ do no more than identify the day to which the employee’s long service leave entitlements accrue and must be calculated; they do not necessarily indicate that an offence against the provision is complete if payment is not made on that day.
The wider context of the LSL Act also indicates that s 9(2) should be read as creating a continuing offence. Most telling is the statement in the explanatory memorandum for the Long Service Leave Bill 2017 (LSL Bill), in relation to cl 9: ‘As this is a “continuing offence” the penalty applies for each day during which the offence continues’.[56] As the Wage Inspectorate submitted, Parliament could not have stated its intention more clearly. More broadly, the LSL Act was not a mere re-enactment of the 1992 Act. The Minister’s second reading speech explained that it was intended to replace the 1992 Act ‘with a new act that is fairer, more flexible, and better suited to the modern workplace’ and that, in relation to compliance, it contained increased penalties for offences.[57]
[56]Explanatory Memorandum, Long Service Leave Bill 2017 (Vic) 3.
[57]Victoria, Parliamentary Debates, Legislative Assembly, 24 August 2017, 2527, 2528 (Natalie Hutchins, Minister for Industrial Relations).
As to purpose, the evident purpose of s 9(2) is to secure employers’ compliance with their obligation to pay departing employees their long service leave entitlements when their employment ends. This purpose is best promoted by giving full effect to the words in the penalty part of the provision, and reading s 9(2) as creating a continuing offence. It creates a very real incentive for an employer to pay outstanding long service leave entitlements on time, and to rectify any underpayment promptly.
The re-enactment presumption relied on by Optus is an aspect of the modern approach to statutory interpretation, and its insistence that context be considered at the outset. As Gageler J explained in Baini v The Queen:[58]
That modern contextual approach ordinarily requires that statutory language re-enacted in an identical form after it has acquired a settled judicial meaning be taken to have the same meaning. It equally requires that, changes of drafting style aside, statutory language re-enacted in an altered form after it has acquired a settled judicial meaning be taken to have a different meaning. Were it otherwise, legislative policy choices would be blurred and orderly legislative reform would be impeded.
[58](2012) 246 CLR 469, [43] (Gageler J) (footnotes omitted). See also DPP Reference No 1, [10]–[13] (Kiefel CJ, Keane and Gleeson JJ), [51]–[52] (Gageler, Gordon and Steward JJ).
Whether the presumption applies in a given case will depend on the circumstances of the specific statute under consideration.[59] In the case of s 9(2) of the LSL Act, I do not consider that the re-enactment presumption applies in the way contended by Optus. There are two reasons for that view.
[59]DPP Reference No 1, [52] (Gageler, Gordon and Steward JJ).
First, it was not the case that s 72(2) of the 1992 Act had a ‘settled judicial meaning’ when the LSL Bill was before the Parliament of Victoria. To the contrary, for much of that time it was an open question whether s 72(2) of the 1992 Act created a specific or continuing offence. The chronology was as follows:
(a) Mr Joseph had been found guilty of a continuing offence by the Magistrates’ Court in April 2016, and his appeal against that finding had been dismissed by the County Court in November 2016.
(b) He then sought judicial review in the Supreme Court, arguing that the prosecution was out of time because s 72(2) created a specific offence that was complete on the day the employee’s employment ended. That argument was heard by Derham AsJ on 15 August 2017.
(c) Judgment was reserved on 23 August 2017, when the Minister for Industrial Relations introduced the LSL Bill into the Legislative Assembly, and when she moved its second reading the following day.
(d) In a judgment delivered on 29 August 2017, Derham AsJ held that ‘the offence created by sub-s 72(2) of the [1992 Act], once committed, is extensible and continues day by day from that time until the payment required is made’ and was a continuing offence.[60] Mr Joseph appealed that decision to the Court of Appeal.
[60]Joseph v Worthington [2017] VSC 501, [4].
(e) The LSL Bill was passed by the Legislative Assembly on 8 March 2018. On the same day, it was introduced into the Legislative Council by the Special Minister of State, who moved that the bill be read a second time.
(f) The Court of Appeal heard the appeal in Joseph v Worthington on 21 March 2018, and gave judgment on 23 April 2018.
(g) The LSL Bill was debated and passed the remaining stages in the Legislative Council on 8 May 2018. The Court of Appeal’s judgment was not mentioned during the debate.[61]
[61]Victoria, Parliamentary Debates, Legislative Council, 8 May 2018, 1679–86.
In those circumstances, it is highly artificial to suggest that the Parliament of Victoria had considered and accepted the Court of Appeal’s interpretation of s 72(2) of the 1992 Act. Indeed, Optus recognised the likelihood that Parliament understood or assumed that the words of s 9(2) created a continuing offence — a submission that was at odds with its reliance on the re-enactment presumption.
Second, and more importantly, s 9(2) of the LSL Act does not re-enact s 72(2) of the 1992 Act in identical form. Although the obligations imposed by the two provisions are in very similar terms, the penalty parts are quite different: s 72(2) of the 1992 Act provided a single penalty, while s 9(2) of the LSL Act provides a penalty ‘for each day during which the offence continues’. As discussed, the penalty part of an offence provision is an integral part of the offence created by the provision.[62] The penalty provided in s 9(2) of the LSL Act used an established drafting convention to communicate Parliament’s intention to create a continuing offence. The words of the provision, read as a whole, leave no room for the re-enactment presumption to operate.
[62]See [50] above.
For completeness, I do not consider that Optus is assisted by the principle that an ambiguity in a penal provision should be resolved in favour of the most lenient construction. The penalty provided for the offence in s 9(2) is not ambiguous and, in my view, clearly created a continuing offence. Further, the rule requiring strict construction of penal statutes generally gives way to the principle that a provision is to be given the interpretation that best gives effect to a beneficial statutory purpose.[63] As discussed, the purpose of s 9(2) is best achieved by interpreting it as creating a continuing offence.
[63]Waugh v Kippen (1986) 160 CLR 156, 164–5; R v ACR Roofing Pty Ltd (2004) 11 VR 187, [43] (Nettle JA).
Disposition
The magistrate was correct to conclude that s 9(2) of the LSL Act provided for a continuing offence, and there was no error in the decision and order to grant leave to amend the charge-sheet. The proceeding must therefore be dismissed. I will hear the parties on the question of costs.
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