Saluwadana v Optus Administration Pty Ltd
[2022] VMC 2
•27 January 2022
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
INDUSTRIAL DIVISION
Case No. M11027529
| NAJ SALUWADANA (WAGE INSPECTORATE OF VICTORIA) | Prosecution |
| v | |
| OPTUS ADMINISTRATION PTY LTD | Accused |
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MAGISTRATE: | Magistrate J.P. Foster |
WHERE HELD: | Melbourne (Online Magistrates’ Court) |
DATE OF HEARING: | 2 December 2021 |
DATE OF DECISION: | 27 January 2022 |
CASE MAY BE CITED AS: | Saluwadana v Optus Administration Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2022] VMC 2 |
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INDUSTRIAL LAW – Section 9(2) Long Service Leave Act 2018 – Non-payment of entitlements – Continuing offence – Amendment of charges – Injustice to the accused.
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Prosecution | Ms D. Price | Victorian Government Solicitor’s Office |
| For the Accused | Mr M. Minucci | Ashurst |
HIS HONOUR:
On 30 March 2021, the informant, Naj Saluwadana of Wage Inspectorate Victoria (WIV), initiated five (5) charges against Optus Administration Pty Ltd (the Corporate Accused). These charges allege the Corporate Accused failed to pay the full amount of its employees’ long service leave entitlements on the date their employment ended in breach of s 9 of the Long Service Leave Act 2018 (Vic) (LSL Act).
Each of these five charges are particularised as having occurred on a single date.
WIV seeks leave to amend each of the five charges. The amendment sought is to alter the date of the alleged offences from a single date to between dates. The end date sought for each of the five charges is 29 January 2021. The purpose of the proposed amendment is to properly reflect that not only did the Corporate Accused fail to pay the full amount of its employees’ long service leave on the date their employment ended, but it continued to fail to comply with s 9(2) of the LSL Act until such time as each employee was paid their full entitlements.
If leave to amend the charges is granted, this will affect the maximum penalty for each charge. In the case of a body corporate, the maximum penalty would be calculated at 60 penalty units for each day the offence continued.
The Corporate Accused objects to the amendment of the charges.
Two matters fall for determination by this court:-
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).
Is the offence in s 9(2) of the LSL Act a continuing offence?
WIV submits that a charge laid pursuant to s 9(2) is capable of being a continuing offence when the text of the LSL Act is considered, in light of the context of that enactment.
I accepted that submission previously in Saluwadana v Coles Supermarkets Australia Pty Ltd [2021] VMC 008 (Saluwadana v Coles) at [40]-[41].
However that expressed view was obiter dictum, as the charges in that particular matter were not particularised as continuing offences.
Counsel for the Corporate Accused properly invited me to reconsider this issue after detailed further written submissions were put before me by each party in this proceeding.
By reason of amendments made by section 75 of the Industrial Relations Legislation Amendment Act 2021 section 9 of the LSL Act presently reads as follows:-
9 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—
(a)the employee is taken to have started long service leave on the day on which the employment ends; and
(b)the full amount of the employee's long service leave entitlement, calculated as at the day on which the employment ends, is due and payable to the employee on that day.
(2)The employer of an employee referred to in subsection (1) must pay the employee the full amount of the employee's long service leave entitlement.
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.
(3)The obligation imposed under subsection (2) to pay the employee's long service leave entitlement continues from the day on which the entitlement accrues under subsection (1)(b) until the employer has paid the full amount of the entitlement to the employee.
The Corporate Accused concedes that the newly enacted section creates a continuing offence but, importantly, the new section stands in contradistinction to the section as it previously existed.
At the time of the alleged offending, section 9 of the LSL Act read as follows:-
9 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.
The immediate predecessor provision to s 9(2) was s 72(2) of the Long Service Leave Act 1992 (Vic) (1992 Act). Section 72 provided:
72 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.
In Joseph v Worthington & Anor [2017] VSC 501 the Court of Appeal concluded that the plain words of s 72(2) of the 1992 Act imposed an obligation to pay the long service leave entitlement ‘on that day’, being the day upon which the obligation accrued per s 72(1). As such it was a ‘specific offence’ rather than a continuing one.
Section 9(2) of the LSL Act provides that the employee’s long service leave entitlements must be paid ‘on the day’ referred to in the preceding subsection. The use of the phrase ‘on the day’ in the offence provision is similar to s 72(2) of the 1992 Act. The phrase ‘on the day’ was crucial to the decision in Joseph v Worthington that the offence contained in s 72(2) of the 1992 Act was complete on the day the employment ended, and was not an offence which may continue to exist after that date.
However, WIV submits that the decision of Joseph v Worthington is not necessarily authority for the proposition that s 9(2) of the LSL Act cannot be a continuing offence.
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.
Legislative intention: text and context.
The meaning of s 9 of the LSL Act can only be resolved by a proper application of interpretative principles of statutory construction.
The guiding considerations in interpreting the provisions are the text used and its context, as explained by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority.[1]
[1](1998) 194 CLR 355 at [69]-[71] (‘Project Blue Sky’).
The task of interpreting a statute must begin with a consideration of its text whilst at the same time, regard must be had to its context and purpose.[2]
[2]SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, 262 CLR 362 per Kiefel CJ, Nettle and Gordon JJ).
Words, whether used in a statute or more generally, always exist in and take their meaning from the particular context in which they are used. That context may expose any mischief which a statute is directed towards redressing and may reveal the purpose underpinning the enactment. That purpose, in turn, guides the preferred meaning to be given to the words being construed. The process of statutory interpretation may thus be seen as a holistic one or as one involving something akin to hermeneutic reasoning.[3]
[3]Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 204; 393 ALR 485 [31].
To this end, emphasis on the importance of context in statutory interpretation at least overlaps with and reinforces the need for purposive construction.
Section 35 of the Interpretation of Legislation Act 1984 further expressly provides that in the interpretation of the provision of an Act, a construction that would promote the purpose or object underlying the Act shall be preferred to a construction that would not promote that purpose or object.
Further, s 35(b) recognises that a statutory purpose or object may not always be found in the express terms of the statute being construed. Relevantly, s 35 states:
Principles of and aids to interpretation
In the interpretation of a provision of an Act or subordinate instrument—
(a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and
(b) consideration may be given to any matter or document that is relevant including but not limited to—
(i) all indications provided by the Act or subordinate instrument as printed by authority, including punctuation;
(ii) reports of proceedings in any House of the Parliament;
(iii) explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament; and
(iv) reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry, Formal Reviews or other similar bodies.
Notwithstanding the statutory enactment of s 35, common law principles continue to play a role.
The influential common law ‘modern approach’ to statutory interpretation, outlined in the joint judgment of Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Page Ltd v Bankstown Football Club Ltd[4] elevates interpretation in context to the primary approach to statutory interpretation. There it was said[5]:
… [T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means … one may discern the statute was intended to remedy.
[4][1997] HCA 2.
[5]At [88].
Since the CIC Insurance case, extrinsic materials have come to be regularly used to identify the purpose or object of a provision.
Legislative history of LSL Act
It is convenient at this juncture to consider the LSL Act in its context.
The 1992 version of the LSL Act was entirely revoked and replaced by the LSL Act in 2018.
The 1992 Act contained an equivalent provision in respect of the payment of long service leave entitlements, in terms not dissimilar to s 9.[6] The stipulation in respect of the offence as “continuing” was absent from the provision.
[6]Long Service Leave Act 1992 (Vic) s 72.
In the second reading speech for the new 2018 LSL Act, the purpose served by the new LSL Act was described thus (excerpted as relevant):
Labor’s 2014 election platform committed us to reviewing the Long Service Leave Act. It had become increasingly apparent that the current Long Service Leave Act is not well placed to cope with the realities of the modern workplace.
…
Detail of the proposals
The bill increases penalties to be comparable with current Victorian standards.
…
Why a new act?
On the advice of parliamentary counsel, and in the interests of having legislation that is easy to read and comprehend, it is best to start again and enact fresh legislation.
Summary
The benefits of the proposed reforms include: more flexible approaches to the taking of long service leave that will benefit both employees and employers; making it easier for employers and employees to understand their rights and obligations; ensuring casual and seasonal employees with the requisite continuous service have access to the same benefits as other employees; and support for employees to enjoy their rights to take parental leave without adversely affecting their long service leave eligibility or accrual.
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).[7]
[7]Prosecution Submission on Amendment of Charges (12 October 2021) – at [11]-[15].
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.
Interpretation of the whole provision
The Corporate Accused places weight on what is described as the ‘offence’ portion of s 9(2) of the LSL Act, vis à vis the ‘penalty’ aspect.
The Corporate Accused submits that the “maximum penalty provision cannot displace the clear meaning of the language of the offence provision itself – a stream cannot rise higher than its source”.[8]
[8]Outline of Submission of the Corporate Accused (26 October 2021) - at [24]
I was initially attracted to that submission.
However such a construction would seem to offend the well-known and fundamental principle re-stated by McHugh, Gummow, Kirby and Hayne, JJ. in Project Blue Sky as follows:
“… [A] court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent.’”[9]
[9]Project Blue Sky (n 1) [71].
There can be no acceptable conclusion that the words in the penal aspect of the provision have no work to do. It would be contrary to fundamental principles of statutory interpretation to construe a statutory provision so as to render clauses or phrases of no use or relevance.
No authority is advanced by the Corporate Accused to support its submission that the penalty aspect is ‘at best, an aggravating factor to be taken into account.’[10]
[10]Outline of Submission of the Corporate Accused (26 October 2021) - at [25]
The Corporate Accused further argues that the phrase “on that day” otherwise ‘rebuts’ any intended operation as a continuing offence.
This cannot be so. To accept such a construction is to accept that the provision, as drafted at that time, is in its terms contradicting itself. Such a reading of the express words of the provision simply does not give rise to the interpretation contended. To otherwise conclude so would be to impermissibly disregard the purpose and context of the statute as outlined above.
Even so, where an ambiguity is present, the court must endeavour to resolve that ambiguity by the application of the various aids to construction that are applicable to all statutes. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.[11]
[11]Ross v The Queen (1979) 141 CLR 432 at 440 per Gibbs J.
The approach that a provision may be rebutting itself as to its purpose is not one which seeks to resolve the alleged ambiguity put forward.
Presumption of re-enactment
In its submissions, Counsel for the Corporate Accused relies on the presumption of re-enactment in its support of its interpretation of s 9(2) as a singular offence.[12]
[12]Submissions of the Corporate Accused at C.3.
The presumption of re-enactment is an interpretive presumption to the effect 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.[13] This presumption was given authoritative expression by a unanimous High Court in Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees, where the Court said:
There is abundant authority for the proposition that where the Parliament repeats words which have been judicially construed, it is taken to have intended the words to bear the meaning already ‘judicially attributed to [them]’, although the validity of that proposition has been questioned.[14]
[13]Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232, 243 [40]; [2012] VSCA 179 (Osborn JA, J Forrest and Beach AJJA).
[14]Re Alcan Australia; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96, 106 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) (citations omitted).
The ‘re-enactment presumption’ is called in aid as one of several considerations said to bear on a question of interpretation before the court. Indeed, in Williams v Oataway,[15] it was observed that there is no rigid rule of law on the subject of re-enactment after judicial interpretation and that the presumption should not lead the Court to perpetuate the construction of a statutory provision which it considers to be erroneous.[16] Further, in respect of the interpretative principle described above originating from Project Blue Sky, their Honours stated:
Although in the textbooks cited examples can be found where it was not possible to give a meaning to every word or where in order to effectuate the clear object of the Act in question it was necessary to treat an expression as surplusage, the rule that every word of a provision and every provision should be given meaning (or, in other words, the presumption against surplusage) seems to me to be of a higher order than the presumption from re-enactment relied on by the respondents.[17]
(emphasis added)
[15][2005] VSCA 137.
[16]Ibid [20].
[17]Ibid.
The High Court most recently considered the re-enactment presumption in Director of Public Prosecutions Reference No 1 of 2019[18] on appeal from the Court of Appeal in Victoria.
[18](2021) 95 ALJR 741.
There, the Court of Appeal considered the meaning of recklessness in s 17 of the Crimes Act 1958 (Vic). The offence in s 17 is committed where a person, "without lawful excuse, recklessly causes serious injury to another person". The Court of Appeal held that the courts of Victoria should not follow the approach unanimously taken by the High Court in Aubrey v The Queen in 2017 to the meaning of "recklessness" in a differently worded New South Wales provision. Instead, it was held that the courts of Victoria should continue to follow the decision of the Court of Appeal of the Supreme Court of Victoria in 1995 in R v Campbell.
The appeal to the High Court raised in issue the meaning that Parliament intended for the word "recklessly" when s 17 of the Crimes Act was introduced by the Crimes (Amendment) Act 1985 (Vic) and the relevance of later amendments to the Crimes Act in 2013. The Court dismissed the appeal, split 4:3 on the question. Useful guidance on the principles to be applied in the re-enactment presumption is given in both the majority and minority discussions.
Minority discussion (Kiefel CJ, Keane and Gleeson JJ)
The minority concluded that the Court of Appeal fell into error by concluding that, subsequent to Campbell, the Victorian Parliament adopted the meaning of "recklessly" given in Campbell by reference to the two amending statutes. They said:
The Court of Appeal made wrong assumptions about the legislature's thinking concerning the 1997 amendments. In truth, no occasion for the application of the principle of construction arose. There is nothing beyond the mere repetition of the word "recklessly" in the 2013 amendments to support the application of the principle. That fact alone is insufficiently clear to warrant an inference of legislative approval and there are no other factors which support such an inference.[19]
[19]Ibid 750.
The minority noted that in the 1997 amendments the word ‘recklessly’ was not adopted. When the term reappeared in the 2013 amendments, the legislature did so in a different context, in connection with the creation of a new offence:
Certainly there is nothing said in Parliament during the second reading of the Bill or in the Explanatory Memorandum which directs attention to what the legislature may have taken to be the meaning of "recklessly". There is no legislative history to assist the drawing of such an inference.[20]
[20]Ibid 749.
Majority reasoning
As a crucial point of difference to the minority, their Honours noted that the application of the re-enactment presumption does not depend on expert reviews or specific legislative amendments directed towards the precise issue – in this case the meaning of recklessness in s 17. They said:
[A]dopting and adapting what was said in Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher, it is difficult to imagine that the decisions in Nuri and Campbell – cases concerning the meaning of recklessness – were not known to those involved in the field as interpretive decisions of considerable significance. This is especially so given that the amending enactments significantly and directly altered the nature and extent of the criminality and culpability of a contravention of s 17 of the Crimes Act. In relation to the 2013 amendments, the SAC report did expressly identify the meaning of recklessness by reference to the decision in Nuri (which Campbell followed).[21]
[21]Ibid 756.
Although Edelman J agreed with the majority, his Honour appeared to take a different starting point in presuming that where the essential meaning of a term or provision is intended by Parliament to be developed by the courts, the intention of Parliament is given effect by the development of the concept in the manner of the common law. In Edelman J’s view, that intention was made clear in that none of the extrinsic materials concerning the 2013 amendments referred to any authorities calling Campbell into question or expressed any doubts about the correctness of the decision in Campbell.[22]
[22]Ibid see 757-766.
Conclusion on presumption of re-enactment
What is clear from the reasoning of the majority is that the application of the presumption ultimately turns on the particular circumstances having regard to the history of the specific statute to deduce legislative intent. The differentiation in reasoning in Director of Public Prosecutions Reference No 1 of 2019 can be reduced to the relative significance placed on the external indicators of that intention.
Counsel for the Corporate Accused places much emphasis on the presumption so as to impute knowledge on part of Parliament, who must have been aware of the decision in Joseph v Worthington and understood that the provision would be taken to operate as a single offence completed at a particular point in time. However, observation made in the course of reasoning by Edelman J is apt here:
"A statute can ‘pick up as a criterion for its operation a body of the general law' and 'in the absence of a contrary indication in the statute, the statute speaks continuously to the present, and picks up the case law as it stands from time to time'. Generally, broadly expressed criteria can be expected to be given content as 'the technique of judicial interpretation [gives] content and more detailed meaning on a case to case basis. Rules and principles emerge which guide or direct courts in the application of the standard.”[23]
(emphasis added)
[23]Ibid 762.
If one accepts the view that Joseph v Worthington can be seen to apply to a similarly drafted but an unrelated legislative instrument – a matter returned to below – then it cannot be said that there is an absence of contrary indication in the statute to displace that interpretation. By the very phrasing, in the penalty component, that the provision operates as “a continuing offence” that contrary intention is indicated. It is here useful to recount the High Court authority in Minister for Immigration and Border Protection v Kumar[24]:
[24][2017] HCA 11.
But, as was observed in Salvation Army (Victoria) Property Trust v Fern Tree Gully Corporation, the presumption should not lead the court to perpetuate a construction of a statutory provision which it considers to be erroneous. Over time and with changes in the "mechanics of law-making", the importance of the presumption has declined. Accordingly, as was stated in Flaherty v Girgis, the rule is nowadays of much less use as a guide and will not be permitted to prevail over an interpretation otherwise appearing to be correct. It is to be observed, too, that the rule has typically been confined in its application to the re‑enactment of a provision in identical terms. It is, therefore, particularly inapposite in a case like this where the legislature has deliberately employed different wording from the earlier form of the provision.[25]
(emphasis added)
[25]Ibid [77].
Existing authority
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:[26]
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)
[26]Jones v Lorne Saw Mills Proprietary Ltd [1922] VicLawRp 92; [1923] VLR 58, 64-65.
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.[27] 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.
[27]At [47].
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.
Summary - Is the offence in s 9(2) of the LSL Act a continuing offence?
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”.
Should leave to amend the charges should be granted pursuant to s. 8 of the CPA?
Section 8 of the CPA provides:-
8. 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.
In my view, section 8 of the CPA permits amendment of the charge-sheet as sought by WIV.
The amendment does not create a new offence. There is no relevant injustice to the Corporate Accused.
New offence?
In Bant v Grant [2021] VSC 276 (Bant), the Supreme Court considered whether an amendment would have the effect of charging a new offence. The Court found that, in order to determine whether an amendment would have the effect of charging a new offence, it is first necessary to identify the 'essential factual ingredients' of the offence. A distinction must be drawn between the essential ingredients of an offence and other facts that the prosecution must establish to prove the charge, which may be provided as particulars. The latter are not 'essential ingredients' of the offence, but may be factual matters that must be established to prove the charge, or to accord procedural fairness to the accused.
In Bant the Supreme Court found that one of the essential ingredients of a speeding offence was that the accused drove a vehicle, other than a heavy vehicle. The colour, make, model and year of the vehicle were not essential ingredients, but rather other facts that the prosecution would need to prove. The Court found that such non-essential facts could be subject to amendment without creating a 'new offence'.
Bant confirms that, if the essential factual ingredients of the offence remain the same as a result of the amendment, then the amendment does not have the effect of charging a new offence.
To determine whether the proposed amendments would amount to the creation of a new offence, it is necessary to consider the ‘essential ingredients’ of an offence laid pursuant to s 9(2) of the LSL Act. These essential ingredients are:
a.The accused employs an employee.
b.The employee’s employment ends before the employee has taken all the long service leave to which he or she is entitled (the employee is taken to have started long service leave on the day that the employment ended).
c.The employer fails to pay the employee the full amount of his or her long service leave entitlement as at that day.
The end of the employee’s employment is an essential ingredient, as it is only upon that event that the employer must pay the employee the full amount of their long service leave entitlement.
When, if ever, the employer belatedly pays the employee the full amount of their long service leave entitlement is not an essential ingredient. It may that be the employer pays the employee one date later, one year later, or never. Such a delay does not affect the essential ingredients of the offence as the obligation to pay arose on the day the employee’s employment ended. Put another way, the ultimate date of payment of an employee's overdue long service leave entitlement (if any) does not make any difference to whether or not the Court could find the employer guilty of an offence under s 9(2) of the LSL Act.
The ‘essential ingredients’ of an offence against s 9(2) of the LSL Act remain the same, irrespective of whether the charge itself is pleaded or particularised as a continuing offence.
The date upon which the entitlements were belatedly paid is not an ‘essential ingredient’ of the offence, but a matter which the prosecution must establish in proof of the amended charge. It will of course remain relevant to the applicable maximum penalty.
If I am wrong in this analysis, and the amendments do, in fact, have the effect of creating a ‘new offence’, there is no statutory bar to the amendment in any event. That is because the limitation period applicable to the offence has not yet expired. Accordingly, s.8(3) of the CPA is not engaged.
Injustice to the Corporate Accused?
The Corporate Accused submits that to allow the amendments would manifest injustice in all the circumstances of this case, contrary to s 8(1) of the CPA, in that:-
a. at the time the charges were laid, WIV had a view that s 9(2) of the LSL Act was capable of being charged as a continuing offence. However, WIV elected not to do so for the purposes of this proceeding. Instead, WIV made a deliberate, conscious decision to particularise the charges against the Corporate Accused as specific offences. Having particularised the charges in that way, WIV engaged with the Corporate Accused, via its solicitors, to attempt to resolve the proceedings.
b. inexplicably, WIV then sought to make the Application. What changed? What explanation has WIV given to establish that the charges as previously laid were insufficient? It appears that the only basis for the Application is to render the Corporate Accused liable to a higher maximum penalty. That, with respect, is a not sufficient reason.
The concept of an injustice to an accused was considered in Sutton (a Pseudonym) v R [2015] VSCA 251 (Sutton).
In that case, the prosecution sought to amend an indictment pursuant to s 165(1) of the CPA, which provides:
The court at any time may order that an indictment be amended in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to the accused.
The Court of Appeal found that amendment of the indictment was necessary to accurately convey the allegations of the prosecution. It further considered whether making such an amendment would cause an injustice to the accused. It concluded that there was no injustice resulting from the amendment because:
a.the factual case against the accused was always understood;
b.the application to amend was made before any evidence was called;
c.the suggestion by the accused that he was more likely to be acquitted had the amendments not been permitted misunderstood the relevant injustice to which a court must direct its attention.
In Sutton, the applicant had argued that ‘real injustice’ flowed from the amendment in that there was a probability of acquittal on the charges had the amendment not been made. The Court of Appeal did not accept that submission.
The Court said at [95]:
It is not productive of injustice that the applicant was more likely to be convicted of the charges as a result of the amendments. That will frequently, and entirely properly, be the purpose of amendments sought under s 165.
Given the close similarities between ss 8 and 165 of the CPA, Sutton is instructive as to when and in what circumstances a proposed amendment causes an injustice to an accused.
WIV submits that:-
a.the Corporate Accused has always well understood the factual case against it. In July 2020, WIV audited a random section of Victorian employers, focusing on compliance between enterprise agreements and provisions of the LSL Act. The Corporate Accused was part of this audit. WIV then conducted a more in-depth investigation of the Corporate Accused, requesting information and issuing a notice to produce. The Corporate Accused was cooperative throughout this process. On 1 December 2020, WIV wrote to the Corporate Accused alleging breaches of the LSL Act regarding nine former employees (which included the five former employees now the subject of the charges) and invited a response. The Corporate Accused responded, stating its commitment to rectifying the non-compliance and remediating affected past and present employees.
b.the Corporate Accused has been provided with the summary and the full brief of evidence, which contains a detailed statement by the informant and accompanying exhibits. The full brief of evidence makes plain that Corporate Accused failed to pay the full amount of its employees’ long service leave entitlements on the date their employment ended, and that Corporate Accused belatedly paid those entitlements on 29 January 2021. As the Corporate Accused paid these outstanding entitlements on 29 January 2021, it well understands the factual case against it.
c.the application to amend the charge-sheet is being made at an early juncture, before any evidence has been called. The matter was listed for first mention on 2 July 2021. The matter was adjourned administratively by consent to 17 September 2021 to enable the parties to discuss the charges, and then again on 14 September 2021 to allow the parties to prepare written submissions regarding the application to amend the charge-sheet. The case is therefore at a very early juncture.
Nothing was said to the contrary by the Corporate Accused with respect to the matters submitted by WIV in the preceding paragraph of this judgment.
The matters complained of by the Corporate Accused do not create injustice.
There is nothing unusual or remarkable about the submission that “the Informant engaged with Optus, via its solicitors, to attempt to resolve the proceedings”.
Nor has the Corporate Accused pointed to any fact, matter or circumstance where it has changed its position based upon the initial position taken by WIV, which might tend to show an injustice if WIV were permitted to depart from the way the charges were initially drafted.
To my mind, in a similar vein to the reasoning expressed in Sutton, it is not productive of injustice that the Corporate Accused, in the present case, is now exposed to a higher penalty as a result of the amendments.
The fairness to which s 8(1) of the CPA relates is about procedural fairness. Whether an amendment increases the likelihood of conviction or might result in the imposition of an increased fine has no bearing on the fairness of process to which s 8(1) of the CPA relates.
Conclusion
Insofar as two matter fall for determination by this court, I am of the view that:-
a. the offence contained in s 9(2) of the LSL Act, may be pleaded and particularised as a continuing offence; and
b. leave to amend the charges should be granted pursuant to s. 8 of the CPA.
Accordingly, I grant leave to WIV to amend the charges in the manner proposed by WIV.
These reasons for judgment are delivered on 27 January 2022, following my determination which was given verbally to the parties on 17 December 2021.
MAGISTRATE J.P FOSTER
27 JANUARY 2022
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