Safework SA v Adelaide Mobile Lunch Services Pty Ltd

[2017] SASC 171

SUPREME COURT OF SOUTH AUSTRALIA

(Appeals to a Single Judge: Permission to Appeal in Private)

SAFEWORK SA v ADELAIDE MOBILE LUNCH SERVICES PTY LTD

[2017] SASC 171

Judgment of The Honourable Chief Justice Kourakis

23 November 2017

INDUSTRIAL LAW - SOUTH AUSTRALIA - REGULATION OF PARTICULAR MATTERS UNDER PARTICULAR LEGISLATION - LONG SERVICE LEAVE - PAYMENT IN LIEU OF LONG SERVICE LEAVE

Application for permission to appeal from the Full Bench of the South Australian Employment Tribunal (the SAET).

A notice issued by the appellant alleges that the respondent did not pay an employee the long service leave she was owed. The respondent alleges that the employee unlawfully overpaid herself a sum exceeding her entitlement. An Industrial Magistrate decided that as a result of the employee’s actions the notice should be cancelled. That decision was upheld by the Full Bench of the SAET. The applicant contends that set-off of the unlawful overpayment is not a proper ground to refuse to pay the employee her long service leave entitlements.

Held per Kourakis CJ, granting permission to appeal:

1.     The proposed appeal is arguable and of general importance.

Long Service Leave Act 1987 (SA) s 12, referred to.

SAFEWORK SA v ADELAIDE MOBILE LUNCH SERVICES PTY LTD
[2017] SASC 171

Appeals to a Single Judge

1. KOURAKIS CJ:         This is an application by Safework SA for permission to appeal against a decision of the Full Bench of the South Australian Employment Tribunal (SAET) confirming the decision of an Industrial Magistrate to cancel the notice issued by one of Safework SA’s inspectors to the respondent (AMLS) to make a payment of long service leave to one of AMLS’s former employee (E). AMLS brought an application pursuant to s 12 of the Long Service Leave Act 1987 (SA) (the LSL Act) for a review of the notice. On a review brought pursuant to s 12 of the LSL Act the Industrial Magistrate may confirm the notice if he or she is satisfied that the ‘employer has improperly refused to grant a worker long service leave or to make a payment in lieu of long service leave to which the worker is entitled under this Act’.

2. AMLS accepted that E was entitled to a payment under the LSL Act but contended that it had properly refused to pay E her long service leave entitlements because, in her capacity as a pay officer, she had overpaid herself by a sum which exceeded those entitlements. Safework SA contended that a set-off which was unconnected to E’s long service leave entitlements was not a proper reason to refuse to make the payment. The Magistrate accepted AMLS’s contention and cancelled the notice. Safework SA appealed against that order to the Full Board of the SAET. The majority (Gilchrist and Farrell DPJJ) upheld the Industrial Magistrate’s decision and dismissed the appeal. Hannon DPJ allowed the appeal on the ground that the claimed set-off was not a proper ground to refuse to pay E her long service leave entitlements.

3. On this application Safework SA contends that the reasoning of Hannon DPJ is plainly right and also that the proper construction of the term ‘improperly refused’ is of general importance.

4. The proposed appeal is arguable. In particular a question arises as to whether the adverb ‘improperly’ qualifies the verb ‘refused’ only insofar as it applies to granting ‘long service leave’ and not to payments ‘in lieu of long service leave’.  A worker generally has an entitlement under the LSL to payment in lieu of leave if the qualifying conditions are met whereas an employer has some discretion with respect to the timing of leave. The question is of general importance both because of its potential consequences beyond the parties to this application and because the principle that employee entitlements should not be subject to deductions is a long standing one in Australian employment law.

5. I grant permission to appeal.