Simpson and Secretary, Department of Employment
[2016] AATA 526
•25 July 2016
Simpson and Secretary, Department of Employment [2016] AATA 526 (25 July 2016)
Division: GENERAL DIVISION
File Number: 2015/5309
Re: KATHLEEN SIMPSON
APPLICANT
And:SECRETARY, DEPARTMENT OF EMPLOYMENT
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
Date 25 July 2016
Place Melbourne
The Tribunal decides:
1.to affirm the decision of the respondent dated 28 May 2015 and affirmed on 18 September 2015 in so far as it decided that:
(1)the applicant was engaged by M&S Whelan Investments Pty Ltd as a temporary employee; and
(2)the applicant was not eligible for an advance under s 15(1) of the Fair Entitlements Guarantee Act 2012 in respect of annual leave, payment in lieu of notice and redundancy; and
2.in so far as the decision of the respondent dated 28 May 2015 and affirmed on 18 September 2015 decided that the applicant was not eligible for an advance under s 15(1) of the Fair Entitlements Guarantee Act 2012 in respect of long service leave:
(1) set aside that part of the decision;
(2)substitute a decision that the applicant is eligible for an advance under s 15(1) of the Fair Entitlements Guarantee Act 2012 in respect of long service leave; and
(3)remit that part of the decision to the respondent to calculate the amount of the advance payable to the applicant.
……[sgd]………………….
Deputy PresidentCATCHWORDS – EMPLOYMENT – claim for advance under Fair Entitlements Guarantee Act 2012 (Cth) in respect of annual leave, payment in lieu of notice, redundancy and long service leave – whether applicant a casual employee – meaning of “casual employee” – decision concerning annual leave, payment in lieu of notice and redundancy payment affirmed – decision concerning long service leave set aside and substituted with decision that applicant is eligible for advance in respect of long service leave – decision in respect of long service leave remitted to respondent to calculate amount of advance payable
LEGISLATION
Constitution; s 51(xx)
Corporations Act 2001 (Cth); ss 9, 420C, 420C(3)
Fair Entitlements Guarantee Act 2012 (Cth); ss 3(a), 3(b), 5, 6, 6(1), 6(3), 10, 10(1), 10(1)(d), 10(1)(f), 10(2), 11, 12, 13, 14, 15(1), 20-24, 25-27
Fair Work Act 2009 (Cth); ss 3, 12, 13, 14(1)(a), 14(2), 27(2)(d), 60, 61, 65(2)(b), 67(2), 86, 113(1), 113A, 123, 123(1)(c), 132, 133, 134, 155Long Service Leave Act 1992 (Vic); ss 56, 56A, 57, 58, 59, 60, 60(3), 60(4), 60(5), 60(6), 60(7), 60(8), 60(9), 60(10), 62, 62(2)(a)-(ca), 62A, 62A(1), 62A(2), 62A(3), 63, 64, 66(1), 70, 74, 78, 79(1), 79(2), 79(3)
Hospitality Industry (General) Award 2010; cll 10.1, 10.2, 11, 12.1, 12.2, 12.2, 12.3, 12.4, 12.5, 12.6, 12.7, 12.8, 13.1, 13.2, 13.3, 13.4, 29.1, 29.2, 34.4(a)
Motels, Accommodation and Resorts Award 1998; cll 13.1, 13.2, 13.2.2, 13.2.4(b)
CASES
Amalgamated Collieries of WA Ltd v True [1938] HCA 19; (1938) 59 CLR 417
Amalgamated Collieries of WA Ltd v True [1938] HCA 19; (1938) 59 CLR 417
Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545
Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37; (2015) 228 FCR 346; 321 ALR 404
Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456
Hamzy v Tricon International Restaurants t/a KFC [2001] FCA 1589; (2001) 115 FCR 78
Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21; 181 ALR 263; 75 ALJR 1356; 47 ATR 559; 2001 ATC 4508
Humberstone v Northern Timber Mills [1949] HCA 49; (1949) 79 CLR 389
Melrose Farm Pty Ltd t/a Milesaway Tours v Milward [2008] WASCA 175
Personnel Contracting Pty Ltd t/a Tricord Personnel v The Construction, Forestry, Mining and Energy Union of Workers [2004] WASCA 312
Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Department of Justice and Attorney-General (Corrective Services NSW) [2010] NSWIRComm 148
Reed v Blue Line Cruises Ltd (1996) 73 IR 420
Ryde-Eastwood Leagues Club Limited v Taylor (1994) 56 IR 385
Scott v Davis [2000] HCA 52; (2000) 204 CLR 333; 74 ALJR 1410; 175 ALR 216
Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16; 60 ALJR 194; 63 ALR 513
Vabu Pty Ltd v Federal Commissioner of Taxation (1996) 33 ATR 537; 96 ATC 4898
Williams v McMahon Mining Services Pty Ltd [2010] FCA 1321Wilton & Cumberland v Coal & Allied Operations Pty Ltd [2007] FCA 725; (2007) 161 FCR 300
REASONS FOR DECISION
On 26 February 2015, Ms Simpson lodged a claim for financial assistance in the form of an advance under s 14 of the Fair Entitlements Guarantee Act 2012 (FEG Act). Her claim related to her employment by M&S Whelan Investments Pty Ltd (M&S Whelan) and included components in respect of annual leave, payment in lieu of notice, redundancy and long service leave. On 28 May 2015, a delegate of the Secretary of the Department of Employment (Secretary) decided under s 15(1) of the FEG Act that Mrs Simpson is not eligible for an advance. His decision was affirmed by a different delegate on 18 September 2015. The basis of the decisions was that Mrs Simpson was a casual employee and so not entitled to an advance in respect of annual leave, payment in lieu of notice or a redundancy payment. In relation to her long service leave entitlements, the basis was that liability for that leave had transferred to Manuel Developments Pty Ltd when the assets of its business were sold to it.
I have decided that Mrs Simpson was engaged by M&S Whelan as a temporary employee. As such, she was not eligible for an advance under s 15(1) of the FEG Act in respect of annual leave, payment in lieu of notice or redundancy. She was, however, eligible for an advance in respect of long service leave as that may be accrued by a temporary employee. Therefore, I have set aside that part of the delegate’s decision and remitted it for calculation of the amount of the advance payable to Mrs Simpson in respect of unpaid long service leave. In respect of annual leave, payment in lieu of notice and redundancy, I have affirmed the decision under review.
THE ISSUES
There is no disagreement between the parties that the only issue is whether Mrs Simpson satisfies s 10(1)(d) i.e. is whether she would be owed one or more debts wholly or partly attributable to all of part of one or more employment entitlements. Whether she would be owed those debts turns on:
(1)in relation to annual leave entitlement, payment in lieu of notice entitlement and redundancy pay entitlement:
(a)the proper characterisation of her employment as a casual employee or not; and
(2)in relation to a long service leave entitlement:
(a)whether she had a long service leave entitlement arising out of her employment with M&S Whelan; and
(b)if so, whether the liability for that long service leave entitlement was transferred from M&S Whelan to Manuel Developments.
BACKGROUND
From 1972 until October 2015, Mrs Simpson was employed by a succession of different companies to work at a hotel in Bright in Victoria. The hotel was first known as the Pinewood Hotel. Throughout those years, she was not paid for accrued long service leave entitlements on each change of ownership. She has never taken paid annual leave. Each year, she would take one or two weeks’ leave but it was unpaid leave. Mrs Simpson’s work included bar work, waiting, cleaning rooms, gaming and TAB as well as booking accommodation. She was paid as a casual. Only the chefs and the payroll clerk were permanent employees.
When M&S Whelan acquired the business of operating the hotel (hotel business) in 1996, it was known as The Star Hotel. I will refer to it as the “Hotel”. On the basis of Mrs Simpson’s evidence, I find that the wages of the Hotel staff were reduced. Also on the basis of her evidence, I find that, in approximately 2003, Mrs Simpson asked the Hotel’s then manager whether she could be made permanent. Her request was instigated by the fact that another employee had been made a permanent employee when she was appointed as Office Manager. Her request was refused because M&S Whelan did not want either to pay sick pay or holiday pay or to guarantee fixed hours of work. Ms Julie Quirk, who had been employed as the payroll and administrative officer at the Hotel, confirmed that Mr Whelan had not wanted to pay sick leave or annual leave and so, except for a few full-time staff, preferred to have casual employees.
A Controller of M&S Whelan, Venn Milner Agencies Pty Ltd (Venn Milner) was appointed on 20 August 2013. Mrs Simpson understood that she signed a “Statement of Claim” setting out the amounts to which they were then entitled. She also understood that M&S Whelan had not made the relevant superannuation contributions for quite some time. Mrs Simpson also understood that she and her fellow employees would be unlikely to recover those amounts from the Controller and that they should apply under the FEG Act when the receivership came to an end. Liquidators were subsequently appointed on 16 December 2013[1] but Mrs Simpson’s employment at the Hotel continued. On the basis of Mrs Simpson’s evidence, I find that her hours of work were reduced so that she worked on four, rather than five, days. Her hours reduced from approximately 35 to 25 hours.
[1] T documents; T12 at 173
By an agreement dated 22 August 2014, Venn Milner, as Controller, sold the assets of M&S Whelan to Manuel Developments Pty Ltd (Manuel Developments). Those assets included furniture, plant and equipment previously owned by M&S Whelan and used in relation to the operation of the Hotel.[2]
[2] T documents; T12 at 173-185
Mrs Simpson’s employment continued throughout until it was terminated by the Controller on 8 February 2015. She understood that her wages were paid by the Controller throughout that period. On 9 February 2015, Mrs Simpson commenced employment with Manuel Developments. That was the same day as that on which Manuel Developments leased the Hotel from which it ran the hotel business.[3] Manuel Developments entered a Licensed Venue TAB Distribution Services Agreement on 2 March 2015 so that it could operate a TAB Agency.
[3] Exhibit 2
On 21 July 2015, Mr Wayne Manuel asked Mrs Simpson to sign a letter addressed to himself as Director of Manuel Developments. The letter reads:
“I confirm that I am not entitled to any Long Service Leave entitlements in relation to my employment at the Star Hotel and Manuel Developments Pty Ltd is in no way indebted to me in respect of any long service leave entitlements whatsoever. Any purchaser of the Star Hotel business can rely on this statement made by me.
As far as I am concerned my employment with Manuel Developments Pty Ltd in the business of the Star Hotel commenced on 9 February 2015.”[4]
For the purposes of this case, I accept Mrs Simpson’s evidence that she did not have the opportunity to obtain legal advice about whether she should sign the letter. She did not have an opportunity because Mr Manuel told her that he needed the letter back on the same day. She also understood from him that he would not be paying any of Mr Whelan’s debts.
[4] Exhibit 2
Manuel Developments then entered a Contract of Sale for the hotel business on 31 July 2015. Clause 11 was concerned with employees. It required the vendor to give the vendor all relevant information regarding employees including their employment status and entitlements together with contracts and policies and procedures regarding employment.[5] The Contract of Sale took effect from 26 October 2015.
[5] Exhibit 2
Clause 11 needs to be read in light of cl 4.1, which provided for apportionment at settlement of any revenue and income including wages, superannuation payments, charges and levies. No adjustments were made in respect of any employee entitlements at settlement.[6] On the day before settlement, 25 October 2015, Mr Manuel wrote to Mrs Simpson:
“We confirm that the business of The Star Hotel has been sold as of 26th October 2015 and that your employment with Manuel Developments Pty. Ltd. Trading as The Star Hotel will cease at the close of business on 25 October 2015.
We also confirm that all entitlements owed from 9th February 2015 to 25th October 2015 have been paid in full.
We also would like to take this opportunity to thank each and every one of you not only for your work but also for your friendship.
…”[7]
[6] Exhibit G at 2
[7] Exhibit 2
On the basis of Mrs Simpson’s evidence, I find that she was told that the new owners of the Hotel would require her services. Although she had been planning to retire, she agreed to continue to work to cover the Cup Day weekend. On 27 October 2015, Mrs Simpson received a phone call from the new owner advising her that they did not require her services. Therefore, she retired on 25 October 2015 and has never been paid any annual leave, sick leave or long service leave.
LEGISLATIVE BACKGROUND
Objects of the FEG Act
The FEG Act has two main objects. The first is:
“to provide for the Commonwealth to pay advances on account of unpaid employment entitlements of former employees of employers in cases where:
(i) the employers are insolvent or bankrupt; and
(ii)the end of the employment of the former employees was connected with that insolvency or bankruptcy; and
(iii)the former employees cannot get payment of the entitlements from other sources; …”[8]
The reference to “employer” includes a former employer.[9]
[8] FEG Act; s 3(a)
[9] FEG Act; s 5
The second object of the FEG Act is set out in s 3(b) and is:
“to allow the Commonwealth to recover advances through the winding up or bankruptcy of the employers and from other payments the former employees receive for the entitlements.”
I am concerned only with provisions carrying the first object into effect.
What is an advance?
In the context of the FEG Act, an “advance” means “… financial assistance under this Act on account of employment entitlements.”[10] The expression “employment entitlements” means:
“(a) annual leave entitlement; or
(b)long service leave entitlement; or
(c)payment in lieu of notice entitlement; or
(d)redundancy payment entitlement; or
(e)wages entitlement.”[11]
[10] FEG Act; s 5
[11] FEG Act; s 5
The meaning to be given to each of these entitlements is set out in s 6.[12] That section begins with a general statement in s 6(1) that:
[12] FEG Act; s 5
“This section defines the various kinds of employment entitlements of a person whose employment by an employer has ended, by reference to the person’s entitlements under the governing instrument for the employment
Note: Part 3 may affect the calculation of the person’s employment entitlements for the purposes of working out the amount of an advance the person is eligible for.”
The meaning to be given to the expression “governing instrument for employment” is found in s 5 of the FEG Act. It:
“… means any of the following that governs the employment:
(a)a written law of the Commonwealth, a State or a Territory;
(b)an award, determination or order that is made or recorded in writing;
(c)a written instrument;
(d)an agreement (whether a contract or not).”
Returning to s 6, Mrs Simpson’s claim relates only to annual leave entitlement, payment in lieu of notice entitlement, redundancy pay entitlement and long service leave entitlement. Those entitlements are defined in s 6 as follows:
“Annual leave entitlement
(2)The person’s annual leave entitlement is the amount the person is entitled to under the governing instrument from the employer for paid annual leave that the person:
(a)had accrued at the end of the employment; and
(b)had not taken by then.”
Long service leave entitlement
(3)The person’s long service leave entitlement is the amount the person is entitled to under the governing instrument from the employer:
(a)for long service leave that person had accrued at the end of the person’s employment and had not taken by then; or
(b)on account of long service leave that, had the person’s employment continued until the person qualified for long service leave, would have been attributable to the period before the actual end of the person’s employment.
Payment in lieu of notice entitlement
(4)The person’s payment in lieu of notice entitlement is the amount the person is entitled to under the governing instrument from the employer for a shortfall in the period of notice of termination of the employment.”
Redundancy pay entitlement
(5)The person’s redundancy pay entitlement is the amount of redundancy pay the person is entitled to under the governing instrument from the employer for termination of the employment.”
Eligibility for an advance
Section 10 of the FEG Act sets out the basic conditions of eligibility. Sections 11, 12 and 13 qualify those conditions by excluding certain groups of persons from eligibility. Mrs Simpson does not fall within any of those excluded groups. In so far as the basic conditions of eligibility are concerned, she must meet the general conditions in s 10(1). Those in s 10(2) are not relevant as Mrs Simpson was not employed by a partnership. Those specified in s 10(1) are:
“A person is eligible for an advance if the Secretary is satisfied of all of the following:
(a)the person’s employment by a particular employer has ended;
(b)after the commencement of this section, an insolvency event happened to the employer;
(c)the end of the employment:
(i)was due to the insolvency of the employer; or
(ii)occurred less than 6 months before the appointment of an insolvency practitioner for the employer; or
(iii)occurred on or after the appointment of an insolvency practitioner for the employer;
(d)the person is (or would, apart from the discharge of the bankruptcy of the employer, be) owed one or more debts wholly or partly attributable to all or part of one or more employment entitlements;
(e)the person has taken steps, so far as reasonable, to prove those debts in the winding up or bankruptcy of the employer;
(f)if the person was owed any of those debts before the insolvency event happened, the person took reasonable steps before that event to be paid those debts;
(g)when the employment ended, the person was an Australian citizen or, under the Migration Act 1958, the holder of a permanent visa or a special category visa;
(h)an effective claim (see section 14) that the person is eligible for the advance has been made to the Secretary by or on behalf of that person.”
Amount of an advance
The general rules governing the way in which a person’s various entitlements are calculated are set out in ss 20-24 of the FEG Act. Those general rules are qualified by ss 25-27.
THE GOVERNING INSTRUMENTS FOR EMPLOYMENT
It was agreed between the parties that, for the purposes of determining Mrs Simpson’s annual leave, payment in lieu of notice and redundancy pay entitlements, the governing instrument for employment is the Hospitality Industry (General) Award 2010 (HIG Award). The HIG Award is a modern award made under Part 2.3 of the Fair Work Act 2009 (FWA) and came into operation on 1 January 2010. It draws in the National Employment Standards (NE Standards) set out in the FWA. Before the HIG Award came into effect, Mrs Simpson’s terms of employment were regulated by the Motels, Accommodation and Resorts Award 1998 (MAR Award).
Context to HIG Award provided by FWA
The objects of the FWA are set out in s 3. Only those in 3(b) and (c) are relevant in this case. They state that one object of the legislation is to ensure a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions that cannot be undermined. The object is achieved by setting those terms and conditions through the National Employment Standards, modern awards and minimum wage orders. Chapter 2 of the FWA provides for the terms and conditions of employment of national system employees i.e. employees of a national system employer.[13] A “national system employer” includes a “constitutional corporation” and so, among others, a trading corporation formed within the limits of the Commonwealth,[14] so far as it employs, or usually employs, an individual.[15]
[13] FWA; ss 12 and 13
[14] FWA; s 12. Section 51(xx) of the Commonwealth Constitution applies to a trading corporation formed within the limits of the Commonwealth.
[15] FWA; s 14(1)(a)
As Manuel Developments has been incorporated under the Corporations Act 2001, it is a constitutional corporation. It does not come within the exclusions in s 14(2) of the FWA and so was a national system employer. Its employees were national system employees.
A. National Employment Standards
The National Employment Standards are set out in Part 2-2 of Chapter 2 of the FWA and provide the minimum terms and conditions for all national system employees.[16] Those minimum standards relate to maximum weekly hours, requests for flexible working arrangements, parental leave and related entitlements, annual leave, personal/carer’s leave and compassionate leave, community service leave, long service leave, public holidays, notice of termination and redundancy pay and a Fair Work Information Statement.[17] Each of those is addressed in Part 2-2.
[16] The meaning to be given to the words “employer” and “employee” in Part 2-2 are those of “national system employer” and “national system employee”: FWA; s 60 and see s 12.
[17] FWA; s 61
I note in particular that Division 11 of Part 2-2 deals with notice of termination and redundancy pay but it does not apply to employees specified in s 123. Among those excluded is a casual employee.[18] Division 6 is concerned with annual leave but it applies to employees other than casual employees.[19] A casual employee is not entitled to parental leave under Division 5 of Part 2-2 unless that casual employee is, or will be, a long term casual employee of the employer immediately before the expected date of birth or placement of the child and, but for the birth or placement, would have a reasonable expectation of continuing employment with that employer on a regular and systematic basis.[20] A casual employee may only make a request for flexible working arrangements as provided for in Division 5 if he or she is a long term casual employee with a reasonable expectation of continuing employment by the employer on a regular and systematic basis.[21] Section 12 provides that:
“… a national system employee of a national system employer is a long term casual employee at a particular time if, at that time:
(a) the employee is a casual employee; and
(b)the employee has been employed by the employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months.”
[18] FWA; s 123(1)(c)
[19] FWA; s 86
[20] FWA; s 67(2)
[21] FWA; s 65(2)(b)
Division 9 of Part 2-2 of the FWA is concerned with entitlements to long service leave but, unless an employee is entitled to long service leave under it, his or her entitlement is determined under the relevant State or Territory law dealing with long service leave.[22]
[22] FWA; Note to s 113(1) and see also s 27(2)(d) which preserves State and Territory laws in relation to, among others, long service leave except in relation to an employee who is entitled under Division 9 of Part 2-2 to long service leave.
B. Modern awards
Modern awards set minimum terms and conditions for national system employees in particular industries or occupations. Their terms are ancillary or supplementary to the National Employment Standards[23] and, like those standards, they apply to national system employees and national system employers.[24] Together, they are intended to set a fair and relevant minimum safety net of terms and conditions having regard to the objectives set out in s 134 of the FWA.
A modern award: the HIG Award
[23] FWA; ss 132
[24] FWA; s 133
A. Types of employment covered by the HIG Award
Beginning with the HIG Award, Part 3 deals with types of employment and termination of employment covered by the modern award. The types of employment, with which it deals, are full-time employment, part-time employment and casual employment.[25] Under cl 10.2 of the HIG Award, an employer will inform an employee not only of the terms of engagement but whether the employment is full-time, part-time or casual. I will begin with the definition of full-time employment in that award:
“11. Full-time employment
A full-time employee is an employee who is engaged to work an average of 38 ordinary hours per week.
[25] HIG Award; cl 10.1
The way in which a person may work an average of 38 ordinary hours per week is the subject of cl 29 of the HIG Award. Provided the conditions specified in cll 29.1(b), (c) and (d) are met, an employer and an employee may agree[26] to work those hours in one of the following ways:
“· a 19 day month of eight hours per day;
·four days of eight hours and one day of six hours;
·four days of nine and a half hours per day;
·five days of seven hours and 36 minutes per day;
·152 hours each four week period with a minimum of eight days off each four week period;
·160 hours each four week period with a minimum of eight days off each four week period plus a rostered day off;
·any combination of the above.”[27]
[26] HIG Award; cl 29.1(b)
[27] HIG Award; cl 29.1(a)
Part-time employment is the subject of cl 12 of the HIG Award. It provides that an employer may employ part-time employees in any classification in this award.[28] A “part-time employee”:
“… is an employee who:
(a)works less than full-time hours of 38 per week;
(b)has reasonably predictable hours of work; and
(c)receives, on pro rata basis, equivalent pay and conditions to those of full-time employees who do the same kind of work.”[29]
[28] HIG Award; cl 12.1
[29] HIG Award; cl 12.2
Clause 29.2 of the HIG Award provides that:
“A part-time employee’s regular pattern of work must meet the following conditions:
(a)A minimum of three hours and a maximum of 11 and a half hours may be worked in any one day. The daily minimum and maximum hours are exclusive of meal break intervals.
(b)An employee cannot be rostered to work for more than 10 hours per day on more than three consecutive days without a break of at least 48 hours immediately following.
(c)No more than eight days of more than 10 hours may be worked in a four week period.
(d)Where broken shifts are worked the spread of hours can be no greater than 12 hours per day.”
The basis on which a part-time employee is engaged is the subject of the remaining provisions of cl 12. They are:
12.3At the time of engagement the employer and the part-time employee will agree in writing on a regular pattern of work, specifying at least the hours worked each day, which days of the week the employee will work and the actual starting and finishing times each day.
12.4Any agreed variation to the hours of work will be recorded in writing.
12.5An employer is required to roster a part-time employee for a minimum of three consecutive hours on any shift.
12.6An employee who does not meet the definition of part-time employee and who is not a full-time employee will be paid as a casual employee in accordance with clause 13 – Casual employment.
12.7All time worked in excess of the hours as agreed under clause 12.3 or varied under clause 12.4 will be overtime and paid for at the rates prescribed in clause 33 – Overtime.
12.8A part-time employee employed under the provisions of this clause must be paid for ordinary hours worked at the rate of 1/38th of the weekly rate prescribed in clause 20-Minimum wages, for the work performed.”
The basis on which a casual employee is paid is also the subject of cl 13 of the HIG Award:
“13.1 A casual employee is an employee engaged as such and must be paid a casual loading of 25% as provided for in this award. The casual loading is paid as compensation for annual leave, personal/carer’s leave, notice of termination, redundancy benefits and other entitlements of full-time or part-time employment.
13.2On each occasion a casual employee is required to attend work they are entitled to a minimum payment of two hours’ work.
13.3A casual employee must be paid at the termination of each engagement, but may agree to be paid weekly or fortnightly.”
Part-time employment may be converted to full-time employment in accordance with cl 13.4. It provides:
“(a) This clause only applies to a regular casual employee.
(b)A regular casual employee means a casual employee who is employed by an employer on a regular and systematic basis for several periods of employment or on a regular and systematic basis for an ongoing period of employment during a period of at least 12 months.
(c)A regular casual employee who has been engaged by a particular employer for at least 12 months may elect (subject to the provisions of this clause) to have their contract of employment converted to full-time or part-time employment.
(d)An employee who has worked at the rate of an average of 38 or more hours a week in the period of 12 months casual employment may elect to have their employment converted to full-time employment.
(e)An employee who has worked at the rate of an average of less than 38 hours a week in the period of 12 months casual employment may elect to have their employment converted to part-time employment.
(f)Where a casual employee seeks to convert to full-time or part-time employment, the employer may consent to or refuse the election, but only on reasonable grounds. In considering a request, the employer may have regard to any of the following factors:
·the size and needs of the workplace or enterprise;
·the nature of the work the employee has been doing;
·the qualifications, skills, and training of the employee;
·the trading patterns of the workplace or enterprise (including cyclical and seasonal trading demand factors);
·the employee’s personal circumstances,, including any family responsibilities; and
·any other relevant matter.
(g)Where it is agreed that a casual employee will have their employment converted to full-time or part-time employment as provided for in this clause, the employer and employee must discuss and agree upon:
·the form of employment to which the employee will convert – that is, full-time or part-time employment; and
·if it is agreed that the employee will become a part-time employee, the matters referred to in clause 12 – Part-time employment.
(h)The date from which the conversion will take effect is the commencement of the next pay cycle following such agreement being reached unless otherwise agreed.
(i)Once a casual employee has converted to full-time or part-time employment, the employee may only revert to casual employment with the written agreement of the employer.
(j)An employee must not be engaged and/or re-engaged (which includes a refusal to re-engage) to avoid any obligation under this award.
(k)Nothing in this clause obliges a casual employee to convert to full-time or part-time employment, nor permits an employer to require a casual employee to so convert.
(l)Nothing in this clause obliges a casual employee to convert the employment of a regular casual employee to full-time or part-time employment if the employee has not worked for 12 months or more in a particular establishment or in a particular classification stream.
(m)Nothing in this clause requires an employer to increase the hours of a regular casual employee seeking conversion to full-time or part-time employment.”
B. Long service leave
Long service leave is mentioned on three occasions in the HIG Award but is not provided for in the HIG Award.[30] This is consistent with s 155 of the FWA when it provides that a modern award must not include terms dealing with long service leave. Long service leave is provided for in Division 9 of Part 2-2 of Chapter 2 of the FWA. Those provisions do not exclude State and Territory laws dealing with long service leave except in relation to those employees who are entitled to it under Division 9 or where long service leave entitlements have been discounted in circumstances recognised by s 113A.
[30] The first appears in cl 29.1 when making provision for an arrangement where the agreed hours of work for a full-time employee are 160 hours per four week period. Annual leave and long service leave are not among the days that must be regarded as a day worked for accrual purposes: HIG Award; cl 29.1(c)(vi)(A). The next two references appear in cl 34.4(a), which makes provision for special leave without pay arrangements in respect of catering provided for boarding schools and residential colleges.
The relevant State legislation in this case is the Long Service Leave Act 1992 (Vic) (LSL Act). Under s 56 of the LSL Act, an employee is entitled to 13 weeks of long service leave on ordinary pay on completing 15 years of continuous employment with one employer. The amount of “ordinary pay” is assessed under s 64. That is an employee’s basis entitlement that is modified by ss 56A, 57 and 58. If, for example, an employee stops working for an employer after completing 15 years of continuous service with that employer, he or she is entitled to an amount of long service leave equal to 1/60th of the period of his or her continuous employment since last becoming entitled to long service leave under s 56.[31] Section 59 defines the words “employer” and “employee”. An “employee” is defined to mean a person employed by an employer to do any work for hire or reward and includes, among others, a casual or seasonal employee.[32] The word “employer includes, in relation to a transfer referred to in section 60, a person who was not an employer at the time of the transfer.”[33]
[31] LSL Act; s 57
[32] LSL Act; s 59
[33] LSL Act; s 59
The definition of the word “employer” in s 59 needs to be understood in light of s 60. That section sets out several situations in which an employee is to be regarded, for the purposes of Division 6 of Part 5 of the LSL Act relating to long service leave, as having been employed by the one employer even though having worked for more than one in a strict legal sense. One of those situations arises when an employee is performing duties in connection with assets used in the carrying on his or her employer’s business and those assets are transferred to another employer who continues the employee’s employment.[34] That is a “transfer referred to in section 60”, to which the definition of “employer” in s 59 refers. Other transfer situations provided for in s 60 are the subject of ss 60(7) and (8).
[34] LSL Act; s 60(6)
Relevant provisions of s 60 are:
“(1)-(2) …
(3)If the ownership of a business employing someone changes but the employment of the employee continues, the employee is to be regarded as having started employment with the new owner on the date on which the employee started his or her employment with that business.
(4)Subsection (3) applies regardless of whether the change occurred before or after the commencement of this Division.
(5)If an employee was dismissed from employment by the owner of a business, but the ownership of the business changes and the new owner employs the employee within 3 months after the dismissal, the employee is to be regarded as –
(a)having finished employment with the former owner on the day before the ownership of the business changed; and
(b)having started employment with the new owner on the day the ownership changed; and
(c)having been employed by the new owner from the date on which the employee first started employment at that business.
(6)If an employee performs duties in connection with any assets used in the carrying on of a business of his or her employer and those assets are transferred to another employer who continues the employment of the employee, the employee is to be regarded as having started employment with the new owner on the date on which the employee started his or her employment at that business.
(7)Subsection (8) only applies if an employee performs duties in connection with any assets used in the carrying on of a business of an employer and –
(a)the employer is dismissed by that employer; and
(b)those assets are transferred to another employer; and
(c)the other employer employs the employee within 3 months after the date of the dismissal to perform duties in relation to those assets, or other assets of a similar kind.
(8)If this subsection applies, the employee is to be regarded as –
(a)having finished employment with his or her former employer on the day before the assets were transferred; and
(b)having started employment with the new employer on the day the assets were transferred; and
(c)having been employed by the new employer from the date on which the employee first started employment in that business.
(9)Subsections (5), (6) and (8) do not apply if the transfer or change of or ownership occurred before 11 October 1984.
(10)In this section –
assets includes land, plant and equipment;
business includes a trade, process or occupation and any part of a trade, process or occupation and also includes any part of a business;
transfer includes a transmission, conveyance, assignment or succession, whether by agreement or by operation of law.”
Under s 61, a new owner or employer referred to in ss 60(5) and (8), may apply to the Industrial Division of the Magistrates’ Court for a declaration that one or other of those sections does not apply to the employment of an employee or of a class of employee. The Industrial Division of the Magistrates’ Court may make that declaration if the employer satisfies it that the employment of the employee or class of employee was not related to the change of ownership or transfer of assets, as the case may be. If a declaration is made, ss 60(5) or (8), as appropriate, does not apply to the employee or class of employee.
The basic entitlement to long service leave as modified by ss 56A, 57 and 58 is dependent upon an employee’s having completed the appropriate number of years of “continuous employment”. Section 62 sets out the meaning of that expression and provides for situations in which it could be said that an employee’s period of employment was interrupted. So, for example, an employee’s employment is to be regarded as continuous despite his or her taking annual or long service leave, being absent from work on account of illness or injury, taking carer’s leave as approved by the employer and certain periods of maternity leave.[35]
[35] LSL Act; s 62(2)(a)-(ca)
Section 62A is entitled “Meaning of continuous employment for casual and seasonal employees”. While its title may suggest that it alone provides for the meaning of the expression in that context, the text of s 62A suggests that it is to be read with s 62 and is not a stand-alone provision. Section 62A provides:
“(1) Without limiting section 62, the employment of an employee who is employed by the same employer more than once over a period is to be regarded as continuous if –
(a)there is no more than an absence of 3 months between each instance of employment in the period; or
(b)there is more than an absence of 3 months between two particular instances of employment, but the length of the absence is due to the terms of the engagement of the employee by the employer.
(2)Without limiting section 62, the employment of an employee who is employed by the same employer more than once over a period is to be regarded as continuous if the absences between instances of employment are due to the seasonal nature of the employee’s employment.
(3)Subsections (1) and (2) apply even if –
(a)any of the employment is not full-time; or
(b)the employee is employed by the employer under 2 or more employment agreements; or
(c)the employee has engaged in other employment during the period.”
When an employee is entitled to long service leave, the employee and the employer may agree when that leave may be taken.[36] It does not include annual leave occurring during the period when it is taken or any public holiday.[37] Except as permitted by Division 6 of Part 5 of the LSL Act, an employer must not give, and an employee must not accept, payment in lieu of long service leave.[38] An employee must not work for hire or reward while he or she is taking long service leave.[39] Except in the case of agreements specified in s 79(3) of the LSL Act and unless expressly allowed by Division 6 of Part 5, any provision in an employment agreement that annuls, varies or excludes any provision of the Division is of no effect regardless of when the agreement was made.[40] A provision conferring greater rights than those conferred by Division 6 is not affected by s 79(3).[41]
[36] LSL Act; s 66(1)
[37] LSL Act; s 70
[38] LSL Act; s 74
[39] LSL Act; s 78
[40] LSL Act; s 79(1)
[41] LSL Act; s 79(2)
THE AUTHORITIES: differentiating between a full-time, part-time and casual employee
While the FWA differentiates among full-time, part-time and casual employees, it does not give any guidance as to how to make the differentiation in practice. The same is true of the HIG Award, made in accordance with Part 2-3 of the FWA and the Victorian LSL Act. I have turned to decided cases and the common law for guidance but, in doing so, am mindful that notions of what amounts to each type of employment have changed over the years. They have changed with changing social conditions and work practices and even with the increasing practice of employers now contracting out work that was, in former times, undertaken by their employees.[42] A distinction must be drawn between employees and independent contractors.[43] In earlier days, one ground of distinction was the degree of “control” available to the person asking for work to be done over the person doing the work. The concept of “control” was developed in times when one could be expected to know as much about a job and how to do it as the other and would often work alongside the person engaged for the task.[44] While control remains a relevant factor, it is but one of the factors distinguishing between employees and independent contractors.[45] The change in its status can be attributed to changes in the environment in which work is undertaken:
“… With the invention and growth of the limited liability company and the great advances of science and technology, the conditions which gave rise to the control test largely disappeared. Moreover, with the advent into industry of professional men and other occupations performing services which by their nature could not be subject to supervision, the distinction between employees and independent contractors often seemed a vague one.”[46]
[42] See Scott v Davis [2000] HCA 52; (2000) 204 CLR 333; 74 ALJR 1410; 175 ALR 216 at 366-367, 1427-1428, 240-241, [101] per McHugh J in the context of determining whether the defendant was vicariously liable for the acts of another,
[43] See, for example, Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16; 60 ALJR 194; 63 ALR 513 and Vabu Pty Ltd v Federal Commissioner of Taxation (1996) 33 ATR 537; 96 ATC 4898
[44] Humberstone v Northern Timber Mills [1949] HCA 49; (1949) 79 CLR 389 at 404 per Dixon J
[45] “However, at least since Hollis [Hollis v Vabu Pty Ltd (2001) 207 CLR 21; 47 ATR 559; 75 ALJR 1356], it may be accepted that the distinction between an employee and an independent contractor is “rooted fundamentally in the difference between a person who serves his employer in his, the employer’s, business, and a person who carries on a trade or business of his own” (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ at [40], citing Windeyer J in Marshall v Whittaker’s Building Supply Co [1963] HCA 26; (1963) 109 CLR 210 at 217, and see Hollis further at [47] and [57] (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ)). The observations made by Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in Sweeney v Boylan Nominees Pty Limited [2006] HCA 19; (2006) 226 CLR 161 at [30]–[33] are also consistent with the running of a business being the essential hallmark of an independent contractor.”: Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37; (2015) 228 FCR 346; 321 ALR 404 at [177], 389, 442; North, Barker and Bromberg JJ.
[46] Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21; 181 ALR 263; 75 ALJR 1356; 47 ATR 559; 2001 ATC 4508 at [43]; 41; 276; 1366; 572; 4519
Despite these changes, Mason J in Stevens v Brodribb Sawmilling Co Pty Ltd[47] considered the common law to have:
“… been sufficiently flexible to adapt to changing social conditions by shifting the emphasis in the control test from the actual exercise of control to the right to exercise it, ‘so far as there is scope for it’, even if it be ‘only in incidental or collateral matters’: Zuijs v Wirth Brothers Pty Ltd[[48]]. Furthermore, control is not now regarded as the only relevant factor. Rather it is the totality of the relationship between the parties which must be considered. …”[49]
[47] [1986] HCA 1; (1986) 160 CLR 16; 60 ALJR 194; 63 ALR 513
[48] (1955) 93 CLR 561 at 571
[49] [1986] HCA 1; (1986) 160 CLR 16; 60 ALJR 194; 63 ALR 513 at 29; 520-521; 198
Concept of “casual employment” not easily defined and drawn from whole relationship
Similar social changes and developments have led to changes in the way employment is viewed. In Doyle v Sydney Steel Co Ltd[50] (Doyle) for example, the High Court considered when a person could be said to be a “casual worker” in the context of Mr Doyle’s claim for compensation under the Workers’ Compensation Act 1926 (NSW). The Workers’ Compensation Commission had found that Mr Doyle’s employment was casual. He was a boilermaker who worked for periods of weeks followed by further periods of weeks of idleness.
[50] (1936) 56 CLR 545; Starke, Dixon, Evatt and McTiernan JJ
Starke J observed that:
“… The description ‘casual worker’ is not one of precision: it is a colloquial expression, and where, upon all the facts, there is a reasonably debatable question whether the work is casual or regular, the question is one of fact for the commission. …”[51]
[51] (1936) 56 CLR 545 at 551
Dixon J took a similar approach. He found that a high percentage of unemployment for people such as Mr Doyle was an incident of their trade as boilermakers. Whether Mr Doyle’s periods of employment amounted to casual employment was an issue in the case. Dixon J said:
“… [W]hat is casual employment is ill defined. Indeed it is scarcely too much to say that it seems open to a tribunal of fact to treat most forms of intermittent or irregular work as casual. Where the employment involves a contract of service lasting some weeks followed by a long interval of idleness and then another such contract of service and so on, more difficulty arises, if the view is taken that the employee is a casual worker. …”[52]
[52] (1936) 56 CLR 545 at 55
The difficulty to which his Honour referred arose because of difficulties in determining the amount of Mr Doyle’s average weekly earnings and so calculating his entitlement to workers’ compensation. The High Court divided evenly on the solution but that is not relevant in the context of this case. What is relevant is that regard had to be had to the context in which the nature of Mr Doyle’s employment was to be determined.
Together with Evatt J, McTiernan J reached a different conclusion from that of Starke and Dixon JJ. He said that:
“Now the term ‘casual worker’ is not capable of exact definition. Hamilton LJ said in Knight v Bucknill … ‘I think that ‘casual’ is here used not as a term of precision, but as a colloquial term.’ Each case is to be determined on its own facts, consideration being given not only to ‘the nature of the work but also the way in which the wages are paid, or the amount of the wages, the period of time over which the employment extends, indeed all of the facts and circumstances of the case’ (Stoker v Wortham…). …”[53]
It is apparent from his Honour’s conclusion that he looked at the relationship between employer and employee to resolve the issue in that case. He said:
“… Where a skilled tradesman obtains employment at his trade with an employer who regularly carries a staff of artisans belonging to that trade and is employed on terms applicable to all such employees, I find it difficult to say that he is a casual worker, although the occasion of his employment may be the receipt of more orders by the employer. I find nothing in the evidence in the present case which detracts in any way from the prima facie conclusion that the appellant, the nature of whose employment is exactly described by these observations, was not a casual worker. The fact that in the course of the year he had been engaged by other employers in the industry as a boiler-maker and that there were intervals between such periods of employment does not affect this conclusion. There was nothing in the evidence which would, in my opinion, justify the application of the term ‘casual’ to the relations existing between the appellant and the respondent …”[54]
[53] (1936) 56 CLR 545 at 565 (citations omitted)
[54] (1936) 56 CLR 545 at 565-566 (citations omitted)
Some characteristics of casual employment
In Wilton & Cumberland v Coal & Allied Operations Pty Ltd[55] (Wilton) Conti J considered the description “casual employee”. He referred to the judgment of Dixon J and, to the extent that he said that the expression was not capable of exact definition, that of McTiernan J in Doyle and then continued:
“ More recently in Australasian Meat Industry Employees’ Union v Sunland Enterprises Pty Ltd … (1988) 24 IR 467 at 473, Gray J observed that the expression casual employee ‘does not have a recognised legal meaning’, so that any issue as to the terms on which a casual employee is engaged ‘becomes one of fact’. Accordingly it would seem that the expression has not materially changed in meaning since the High Court’s decision in Doyle.
Subsequently in Reed v Blue Line Cruises Ltd (1996) 73 IR 420, Moore J observed more illustratively at 425:
‘A characteristic of engagement on a casual basis is, in my opinion, that the employer can elect to offer employment on a particular day or days and when offered, the employee can elect to work. Another characteristic is that there is no certainty about the period over which employment of this type will be offered. It is the informality, uncertainty and irregularity of the engagement that gives it the characteristic of being casual.’”[56]
[55] [2007] FCA 725; (2007) 161 FCR 300
[56] [2007] FCA 725; (2007) 161 FCR 300, [104]-[105]; 352
A similar approach has been taken by Le Miere J, with whom Steytler P agreed, in Melrose Farm Pty Ltd t/a Milesaway Tours v Milward[57] (Melrose Farm). His Honour has referred to a number of cases regarding the meaning of “casual employee” or “casual employment”. Among them were Reed v Blue Line Cruises Ltd and Hamzy v Tricon International Restaurants t/a KFC[58] (Hamzy), to which I refer later in these reasons. He concluded:
“ There is no one definitive test to distinguish between casual and permanent employees. There are several features characteristic of casual employment. … The essence of casual employment is the absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work. It is not a necessary characteristic of casual employment that the employee work under a series of separate and distinct contracts of employment each entered into for a fixed period.”[59]
[57] [2008] WASCA 175; Steytler and Le Miere JJ; Pullin J dissenting
[58] [2001] FCA 1589; (2001) 115 FCR 78; Wilcox, Marshall and Katz JJ and see [56]-[60] below
[59] [2008] WASCA 175 at [106]
In Fair Work Ombudsman v South Jin Pty Ltd,[60] White J canvassed these authorities and others in the context of s 185 pf the WR Act. Section 185 provided that a loading had to be paid in addition to an employee’s actual basic periodic rate of pay if, with some exceptions, that employee was a casual employee for whom, under section 182, there is a guaranteed basic periodic rate of pay. His Honour concluded:
“ In addition to these features of casual employment, the authorities indicate that the characterisation of a worker’s employment as casual, or otherwise, is essentially a question of fact in which no single criterion is likely to be decisive. Instead, regard must be had to a number of matters, including the way in which the parties themselves regarded their relationship, any commitment by the employer or the worker to ongoing employment, the regularity or otherwise of the worker’s hours or days of work, how the worker was notified of each period of work, the payment of an hourly rate for the hours actually worked, any indication that the hourly rate was intended to encompass leave entitlements, the absence of payment of the benefits associated with employment of an indefinite nature such as paid annual leave, sick leave and public holidays, and whether the employer and worker were able to refuse to offer or accept, as the case may be, further work: Bernardino v Abbott [2004] NSWSC 430 at [21]-[23]; Melrose Farm Pty Ltd t/as Milesaway Tours v Milward [2008] WASCA 175; (2008) 175 IR 455 at [106].[61]
[60] [2015] FCA 1456; White J
[61] [2015] FCA 1456 at [71]
The interaction between the contractual relationship and the nature of the employment
The Full Commission of the Industrial Relations Commission of New South Wales (IRCNSW) considered an appeal from a conciliation commissioner finding that Mr Taylor had been unfairly dismissed by the Ryde-Eastwood Leagues Club Limited (Leagues Club) within the terms of s 246 of the Industrial Relations Act 1991 (NSW) (IR Act). As the conciliation commissioner found that reinstatement was impractical, he ordered that the Leagues Club paid an amount of compensation to Mr Taylor. The Leagues Club had argued that the unfair dismissal provisions of the IR Act did not apply as Mr Taylor had been a casual employee employed under the Club Employees (State) Award (CES Award) and had been last employed on 22 August 1993. On that day, Mr Taylor had completed the shift for which he was rostered. He was not rostered for any further shifts and was subsequently advised that the Leagues Club was no longer prepared to re-engage him.
Did that amount to the League Club’s dismissing Mr Taylor? The answer to that question depended upon whether there was an employment relationship between the two. It was not answered by reference to “any talismanic significance in the designation casual employee”.[62] Rather, adopting what counsel had said, by an analysis of the actual contract of employment between the parties and the time at which, and the way in which, whatever relationship that there was between them was severed.[63] If the relationship is that of employer and employee, there is no general proposition that an employee styled as a casual employee has no remedy for dismissal under Part 8 of Chapter 3 of the IR Act.[64]
[62] Ryde-Eastwood Leagues Club Limited v Taylor (1994) 56 IR 385 at 388; Bauer and Hungerford JJ and Murphy CC
[63] (1994) 56 IR 385 at 388
[64] (1994) 56 IR 385 at 393
As to the effect of the CES Award, the Full Commission concluded that, as a matter of law, it did not regulate the terms on which a casual employee might be engaged. All that the CES Award regulated were the payments to be made to them once employment as a casual was entered into. The Full Commission referred to Amalgamated Collieries of WA Ltd v True[65] in support of its conclusion and I return to that below.[66]
[65] [1938] HCA 19; (1938) 59 CLR 417; Latham CJ, Starke and Dixon JJ; Evatt and McTiernan JJ dissenting
[66] See [61] below
On the evidence, the Full Commission concluded:
“ It is apparent that two classes of employee colloquially described as ‘casual’ can readily be identified in the organisation of industrial relationships. The first class refers to those employees who are truly casual in the sense that there is no continuing relationship between the employer and the employee. The second class is where there is a continuing relationship which amounts to an on-going or continuing contract of employment; it is this second class of contract which, for the reasons set out earlier by us, is of such a nature as to attract the Commission's jurisdiction under Pt.8 of Ch.3 of the Act. Whilst the cross-over point between the above described classes may be difficult to ascertain, it being a matter of fact in each case, we are confidently of the view that the relationship particular to this case fell clearly within the class of an on-going contractual relationship so as to be within the Commission's remedial powers under the Act.”[67]
[67] (1994) 56 IR 385 at 401-402
The importance of context
The importance of context is also apparent from the judgment of the Full Court of the Federal Court in Hamzy, to which I referred earlier. The Full Court was asked to decide whether regulations excluding certain kinds of employees from the scope of its jurisdiction were valid. Under s 46(1) of the Workplace Relations Act 1989 (WR Act), the Australian Industrial Relations Commission might refer a question of law in a matter arising before it for the opinion of the Court. Section 412(1)(c) provided that the Court had jurisdiction in respect of matters referred to it. Section 170CC(1) provided that the regulations might exclude from specified provisions of this Division specified classes of employees included in any of the classes it then specified. Among them were “employees engaged on a casual basis for a short period”. They were specified in s 170CC(1)(c). Relying on s 170CC(1)(c), r 30B of the Workplace Relations Regulations 1989 was made to exclude from the jurisdiction of the Court that class of employee described as a “casual employee engaged for a short period, within the meaning of subregulation (3)”: r 30(B)(1)(d). Sub regulation r 30(B)(3) provided that, for the purposes of the regulation:
“… a casual employee is taken to be engaged for a short period unless:
(a)the employee is engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months; and
(b)the employee has, or but for a decision by the employer to terminate the employer’s employment, would have had, a reasonable expectation of continuing employment by the employer …”
The Court found r 30B(3) to be invalid as it imposed criteria that had nothing to do with the length of employment when the power under which it had been made concerned only the length of employment.[68] In reaching that conclusion, the Court considered the expression “engaged on a casual basis” in s 170CC(1)(c). It said that:
“… The essence of casualness is the absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work. But that is not inconsistent with the possibility of the employee’s work pattern turning out to be regular and systematic.”[69]
[68] [2001] FCA 1589; (2001) 115 FCR 78 at [51]; 91
[69] [2001] FCA 1589; (2001) 115 FCR 78 at [38]; 89
No reference was made in Hamzy to an employee’s being engaged on a single contract or on a series of contracts. The absence of a firm advance commitment to the duration of employment was the critical issue. While reference was made to Mr Doyle’s being engaged for quite distinct periods of work, the High Court did not place any particular significance on the mode of engagement of an employee. Rather, the focus was on the essential nature of the employment. As Dixon J said in Doyle, the evidence showed that “… the worker’s employment was always, so to speak, ad hoc and could not be expected to last indefinitely.”[70] His Honour also noted that Mr Doyle was paid the wages of a casual employee.[71]
[70] (1936) 56 CLR 545 at 557
[71] (1936) 56 CLR 545 at 556
Reference was made to the case of Reed v Blue Line Cruises Ltd in both Wilton and Melrose Farm. It was analysed further by Boland J, President of the New South Wales Industrial Relations Commission in Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Department of Justice and Attorney-General (Corrective Services NSW)[72] (PSA case). Boland J set out the background to the passage from Moore J’s judgment in Reed v Blue Line Cruises Ltd:
“… [I]n Reed Moore J was not engaged in a general analysis of the nature of casual employment, but on the specific inquiry as to whether or not the applicant in that case was excluded from the provisions of Div 3 of Part VIA of the Industrial Relations Act 1988 (Cth) by virtue of reg 30B of the Industrial Relations Regulations (Cth). Regulation 30B excluded from the unfair dismissal provisions of the federal legislation, a ‘casual employee engaged for a short period’. The regulation further provided that a casual employee was taken to be engaged for a short period unless ‘(a) the employee is engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months; and (b) the employee has, or but for a decision by the employer to terminate the employee’s employment, would have had, a reasonable expectation of continuing employment by the employer.’”[73]
[72] [2010] NSWIRComm 148
[73] [2010] NSWIRComm 148 at [19]
In light of that background, Boland J observed:
“Moore J described a casual employee for the purposes of reg 30B as:
an employee who is, from time to time offered employment for a limited period on the basis that the offer of employment might be accepted or rejected but in circumstances where it could be expected that further employment of the same type would or might be offered and accepted but there was no certainty about the period over which it would continue to be offered.
His Honour also stated:
It is important, however, to bear constantly in mind that the regulation is intended to reflect, not entrenched notions of what may be a casual for the purposes of Australian domestic law, but rather what is comprehended by the expression ‘engaged on a casual basis for those periods’ in the Convention.
Given that Moore J was concerned with the question of whether a person was a ‘casual employee engaged for a short period’ under reg 30B of the Industrial Relations Regulations (Cth), his Honour's decision cannot be taken as a definitive statement as to what is a casual employee under Australian domestic law, although his Honour's observations are helpful.”[74]
Does an award or statutory entitlement have any relevance in determining whether employment is casual employment or otherwise?
[74] [2010] NSWIRComm 148 at [20]-[22]
A. General principle
Does the HIG Award have any relevance in determining whether an employee is a casual employee or otherwise? That Award is a modern award made under the FWA but, for the purposes of answering this question, the answer is no different whether it is a modern award made in accordance with earlier legislative provisions such as the Industrial Arbitration Act 1912. The answer was given by Latham CJ in Amalgamated Collieries of WA Ltd v True:[75]
“ When any person is employed to do work to which an award applies, the parties are bound by a contract. Their legal relations are in part determined by the contract between them and in part by the award. The award governs their relations as to all matters with which it deals. This result is produced by secs. 83 and 176. Sec. 83 provides that an award is to be a common rule and that it shall be binding on all employers and workers engaged in the industry to which it applies. Sec. 176 (1) avoids contracts so far as they purport to annul or vary the terms of an award, and sec. 176 (2) provides that every worker shall be entitled to be paid by an employer in accordance with any relevant award, notwithstanding any contract to the contrary. Thus, the award controls the relations of the parties as to all matters to which it applies.
But an award never deals with all the matters which affect the relations of any particular employer and any particular employee. The creation of the relation of employer and employee depends upon an agreement between them and not upon any award. Thus, the existence of the obligations under an award in relation to a particular employer and employee always depends on the existence of a contract between them. So, also, there are terms of their relationship which do not depend upon any award. For example, the employee must always obey the lawful orders of his employer, but awards do not commonly include a term to that effect. In my opinion, however, it is unnecessary in this case to work out in detail the basis of the relations created by employment under an award. For the purposes of this case it is sufficient to refer to what was said in a unanimous judgment of this court in Mallinson v. Scottish Australian Investment Co. Ltd …: ‘Apart from the Act’ (the Commonwealth Conciliation and Arbitration Act) ‘the right to receive wages sprang from the existence of the relationship of master and servant and the performance of services therein, and notwithstanding the Act it is still the existence of this relationship and the performance of services therein which confers on the employee the right to remuneration—all that the Act has done in this respect is to substitute another method of determining the amount of the remuneration.’”[76]
[75] [1938] HCA 19; (1938) 59 CLR 417; Latham CJ, Starke and Dixon JJ; Evatt and McTiernan JJ dissenting
[76] [1938] HCA 19; (1938) 59 CLR 417 at 423-424
B. An award or statutory entitlement may provide context
The case of Williams v McMahon Mining Services Pty Ltd[77] (Williams) was decided in the context of the WR Act. There were three issues raised. The first was whether Mr Williams was, or was not, a casual employee for the purposes of s 227 of the WR Act. The second was whether a provision in Mr Williams’ contract of employment expressly providing for payment of a loading in lieu of paid leave entitlements was of any effect. The third related to the assessment of penalties imposed on McMahon Mining Services Pty Ltd (McMahon). McMahon paid Mr Williams $40 per hour. The contract provided that:
“The rate of pay is all inclusive and takes into account all responsibilities, disabilities, allowances … and includes payment for all hours necessary to undertake your rostered duties, and as a casual employee, a loading in lieu of paid leave entitlements. The rate includes compensation for any necessary shift, public holiday and weekend work.”[78]
The contract also provided that:
“Employment may be terminated by the provision of notice, being one hour in the case of a casual employee;
If there are outstanding monies owed to the Company on termination, these verified amounts will be deducted from any wages owing to the employee.”[79]
[77] [2010] FCA 1321; Barker J
[78] [2010] FCA 1321 at [9]
[79] [2010] FCA 1321 at [19]
Barker J referred to previous authorities including Doyle but also to the passage from the judgment of Moore J in Reed v Blue Line Cruises Ltd,[80] to which Conti J had referred in Wilton. His Honour said of this passage:
“ I do not consider that these observations by Moore J should be read other than as general observations concerning the concept of casual employment. Certainly, they were not, in my view, intended to be observations about employment on a casual basis under any particularly statutory or regulatory regime. They are a helpful commentary on what the early authorities, such as Doyle, have to say on the topic of what casual employment is under the general law today.
This in my view is confirmed by what the Full Federal Court said in Hamzy v Tricon International Restaurants … (Hamzy), at [38]; namely, that ‘casual employee’ embraces ‘an employee who works only on demand by the employer’ and that ‘the essence of casualness is the absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work’.
Similarly, the Western Australian Industrial Appeals Court in Melrose Farm Pty Ltd t/a Miles Away Tours v Milward … (Le Miere J with Steytler and Pullin JJ agreeing) whilst acknowledging there is no definitive test, adopted this approach, that ‘the essence of casual employment is the absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work’.”[81]
[80] (1996) 73 IR 420
[81] [2010] FCA 1321 at [34]-[36] (citations omitted)
Mr Williams worked for McMahon as a miner from 9 November 2006 until 16 December 2007 when he was given one hour’s notice of the termination of his employment, which McMahon described as “casual employment”. During that period, Mr Williams was required to work 12 hour shifts, being either day or night shifts, for two consecutive weeks followed by seven days off. He was flown to and from the mine site by charter flight at the beginning and end of each two week period. McMahon did not pay him any amount for annual leave on the termination of his employment.
The Federal Magistrate who heard the matter at first instance had decided that Mr Williams was not a casual employee. Barker J concluded that the finding was open on the evidence. He observed:
“ To the extent that the parties by the Contract described their relationship as employer and ‘casual employee’ it is well understood that the descriptions supplied by such an instrument will not override the true legal relationship that arises from a full consideration of the circumstances: Tricord at [24]-[25].”[82]
The provision for termination of the contract on one hour’s notice was relevant but its significance had been lessened on a reading of the contract as a whole. It was open to read the contract as a whole to arrive at the conclusion that it would only be terminated for cause or upon the head contract’s coming to an end. Mr Williams’ engagement had been based on a roster and could not be described as intermittent or irregular. His future was provided for and the nature of the work required of him stipulated. A roster was in place and travel arranged and provided for by McMahon to facilitate his working according to his rostered hours.
[82] [2010] FCA 1321 at [38] citing Personnel Contracting Pty Ltd t/a Tricord Personnel v The Construction, Forestry, Mining and Energy Union of Workers [2004] WASCA 312
Barker J went on to consider s 173 of the WR Act which provided that a term of a workplace agreement or a contract had no effect to the extent to which it purported to exclude the Australian Fair Pay and Conditions Standard (AFPCS) or any part of it. Had Mr Williams been a casual employee, s 173 would not have had any application for it did not apply to a contract of employment for a casual employee.[83] McMahon had argued that, although the contract had not allocated a specific amount to any particular leave entitlement, it was intended to satisfy, and not exclude, any entitlement under the AFPCS. On its argument, Mr Williams was paid his entitlement to his annual leave as part of his hourly rate and, on termination of his employment, no monies would have been payable to him for leave accrued and not taken.
[83] WR Act; s 227
Barker J noted that s 232 entitled an employee to annual leave during his or her employment and s 236 entitled an employee to take any authorised period of annual leave and prohibited the employer from unreasonably refusing leave. If a person had accrued leave and not taken it, s 235(2) entitled the employee to payment. Subject to certain limitations, s 233 permitted an employee to elect to forego up to two weeks of annual leave and to be paid for that period.
Having regard to all of those matters, Barker J concluded, the WR Act did not permit the payment of an amount of money in lieu of a period of time off work on pay. Section 173 reflected Parliamentary intention that a person cannot, by one means or another, contract out of his or her entitlement to be paid annual leave and other leave entitlements at the end of the employment period. A provision that seeks to substitute a payment in place of actual leave, Barker J said, excludes that entitlement. Therefore, it is of no effect under s 173.
WHAT WAS THE NATURE OF MRS SIMPSON’S EMPLOYMENT?
In setting out the background to the matters in issue between the parties, I have made findings of fact. I will now consider further evidence related to those findings beginning with Mrs Simpson’s request in approximately 2003 to be made a permanent employee. Provision was made in cl 13.2.4(b) of the MAR Award for conversion from casual employment to permanent full-time or part-time employment. On the basis of Mrs Simpson’s evidence, I find that M&S Whelan did not agree to her converting. Whether or not its decision not to agree was made on reasonable grounds as required by cl 13.2.4(b)(iii) was not canvassed at the hearing and it was not relevant to do so. It was not relevant because, if it was not a reasonable decision, Mrs Simpson had remedies available to her under the WR Act that was then in force. Even though her decision not to pursue those remedies may be entirely understandable, the fact is that she did not take them. No remedy is available under the FEG Act for, as a general rule, its criteria can be said to be based on what has happened in an employment relationship and not on what should have happened.
Mrs Simpson’s failed quest to be made a permanent employee is a relevant factor in assessing the proper characterisation of her employment with M&S Whelan. So too is her pay rate. Up until the HIG Award came into operation in 2010, her terms of employment were governed by the MAR Award. Clause 13.2 of that award was concerned with casual employees. It provided that a casual employee would be paid an hourly rate set at 1/38th of the weekly rate prescribed for the class of work performed together with an additional 25% of that rate.[84] Mrs Simpson acknowledges that she was paid at the casual rate.
[84] MAR Award; cl 13.2.2
Her acknowledgment is reflected in the Payroll Advices dated from 1 July 2003 to 12 December 2004 where the nature of her employment is specified as “Bar-Casual”.[85] Payroll Advices or Payslip Advices after that date until 5 June 2005 describe Mrs Simpson as “Bar Staff” as had the earlier advices but do not classify her employment. There was no room for the classification on those advices but there was on those dating from 6 June 2005 to 18 August 2013.[86] No classification was entered. Many, but not all, of the Payroll Slip Advices provided for an Annual Salary and an Hourly Rate. In each case, a figure of $0.00 was shown for the Annual Salary and nothing was entered against the Hourly Rate. The amount paid to Mrs Simpson over the entire period was calculated by reference to whether she worked as Bar Staff or Gaming Staff and the day and time of day at which she worked. The hourly rate varied accordingly.
[85] T documents; T17 at 208-248
[86] T documents; T17 at 260-628
The Payroll Slip Advices also show that Mrs Simpson worked variable hours over the period. She generally worked for some hours on each of Saturday and Sunday as well as during the week. In the week ending 6 March 2011, for example, Mrs Simpson worked 10.5 hours from Monday to Friday, 5.5 hours on Saturday and 5 on Sunday.[87] The following week, the hours worked were 22, 6.5 and 4 hours on those respective days.[88] From 24 June 2013 to 18 August 2013, the spread was 20 or 21, 7 and 6 hours.[89] Before those last couple of months, though, I find that Mrs Simpson’s hours had been much more varied. I will set out only the previous six pay periods to give a flavour of those hours.[90]
[87] T documents; T17 at 499
[88] T documents; T17 at 500
[89] T documents; T17 at 620-627
[90] T documents; T17 at 608-618
PAY PERIOD HOURS Monday to Friday Saturday Sunday 17June 2013 to 23 June 2013 14 7 6 10 June 2013 to 16 June 2013 11 7 6 3 June 2013 to 9 June 2013 25 7 6 27 May 2013 to 2 June 2013 25 7 20 May 2013 to 26 May 2013 21 7 6.5 13 May 2013 to 19 May 2013 18 7 6.75 6 May 2013 to 12 May 2013 25 6.5 29 April 2013 to 5 May 2013 19 6.5 5 22 April 2013 to 28 April 2013 6 7 5.5 This table is a fair reflection of the variation in hours although I note that some weeks fell outside the range. In the week from 11 to 17 March 2013, for example, Mrs Simpson’s hours dropped as low as 9, 6 and 5 but, in the week from 7 to 13 January 2013, rose to a high of 32, 7.5 and 5.5.[91]
[91] T documents; T17 at 594 and 603
In so far as Saturday and Sunday work is concerned, the records of Mrs Simpson’s pattern of work are consistent with Ms Quirke’s evidence that, since 2005, she had the same shifts each week. That Mrs Simpson had the same shifts at the weekend is consistent with the evidence of Mr Wayne Murphy that Mrs Simpson had the necessary tickets to work on the bar as well as in the gaming room and at the TAB Outlet operated at the Hotel. Mr Wayne Murphy was the Hotel’s Manager for several years while it was operated by M&S Whelan. Ms Quirke also said in her statement that Mrs Simpson generally worked on Mondays, Wednesdays and Fridays during the week and both Saturday and Sunday at the weekend. Her evidence is consistent with that of Mr Murphy as well as with that of Mr Richard William, who was a chef at the Hotel between December 2007 and 16 September 2013. Mr Murphy was responsible for the rosters and said that Mrs Simpson would work from 9am to 4pm on five days of each week. Mr William said that Mrs Simpson’s roster for work at the Hotel was regular. She was there like “clockwork” and would work through her lunch break.[92] Ms Quirke said that Mrs Simpson was expected to find a replacement to fill her rostered shift if she could not work it herself.
[92] Exhibit C
I do not doubt the evidence of Ms Quirke, Mr Murphy or Mr William in so far as they are recounting their memories and perceptions of events. Their evidence is consistent with that of Jan and Noel Bowman, who managed the Hotel when it was known as the “Pinewood Hotel”. They wrote of her working a regular evening shift in the Bistro for somewhere between three and seven hours every night of the week.[93] It is apparent that Mrs Simpson was regarded as a very willing, reliable and valued employee who made herself available for work. That said, I must also have regard to the other evidence that I have and that is found in the Payroll Slips. They show that she attended regularly but they also show a far greater variation in hours, although not days, than is recalled by Ms Quirke, Mr Murphy or Mr William. Given that those Payroll Slips also record the amounts paid to Mrs Simpson, I consider that they are a more reliable guide to the hours and days that she worked at the Hotel. In view of the variations in the hours that Mrs Simpson worked from Monday to Friday, I do not accept that her shifts were regular in the way in which those at the weekend were regular.
[93] Exhibit E
In view of these matters and the matters that I have set out in the Background at [4]-[12] above, I find that Mrs Simpson was employed by M&S Whelan as a casual employee. She was paid as a casual and so received a 25% loading on the hourly rate that would have been payable to her as a full-time permanent employee. She was never paid for annual or sick leave. Her request to change her casual employment to permanent employment, whether full-time or part time, was refused. While her rostered hours at the weekend appear steady over the period, her weekday hours varied and she was paid only for the hours that she worked. She was, I find, a person on whom the business relied. She would step up to undertake additional shifts when the need arose as well as swap shifts and would apply herself diligently regardless of the shift. It was an arrangement where there was a clear contract of employment between M&S Whelan and Mrs Simpson but where the hours had a core of regularity but were variable around that core. There was no firm commitment to the number of hours that she would work each week but there was a firm commitment not to pay her holiday pay. Even though I acknowledge that Mrs Simpson’s employment with M&S Whelan extended over a long period and she was a devoted employee, I find that her employment was casual employment and not permanent.
I note that Mrs Simpson has relied on the case of Williams, which I have summarised at [62]-[68] above. The facts as found by the Federal Magistrate regarding Mr Williams’ employment were quite different from those I find to be those relating to that of Mrs Simpson. While both had a continuing contract of employment with their employer, Mr Williams’ rosters and hours were regular and constant. There was a firm understanding that the pattern of work would continue. In contrast, Mrs Simpson’s rosters and hours, had a core of regularity but, apart from the weekend work, were variable. There was no firm commitment that the hours or pattern of the roster would be constant.
Their hourly rates of pay had a consistent quality in that both incorporated a loading. The loading payable to Mrs Simpson was consistent with the HIG Award and the MAR Award before it. That payable to Mr Williams was found to represent an attempt to contract out of his or her entitlement to be paid annual leave and other leave entitlements at the end of the employment period. It was an attempt that was contrary to the WR Act. Mrs Simpson’s circumstances are not those of Mr Williams. She was paid a 25% loading in accordance with the HIG Award and the MAR Award before it. As cl 13.1 of the MAR Award provides, that loading is paid as compensation for annual leave, personal/carer’s leave, notice of termination, redundancy benefits and other entitlements of full-time or part-time employment.
WAS MRS SIMPSON ENTITLED TO EMPLOYMENT ENTITLEMENTS?
The outcome of my finding that Mrs Simpson was a casual employee of M&S Whelan is that she was not, under the FEG Act, entitled to all or part of the employment entitlements being annual leave entitlement, payment in lieu of notice entitlement and redundancy pay entitlement.
That leaves the question of whether Mrs Simpson has a long service leave entitlement. It is not an entitlement provided for in either the HIG Award or the MAR Award before it but it is provided for in Victoria for casual employees in the LSL Act. I have set out the relevant provisions at [35]-[41] above. It is clear from that summary that the legislation applies to an “employee” and that an employee includes a casual employee. In the case of a temporary employee, entitlement to long service leave is based on the number of years of an employee’s continuous employment, as defined in ss 62 and 63 of the LSL Act, with one employer. As I have mentioned, a person may be employed by more than one employer and still be regarded as having been employed by just one for the purposes of the LSL Act. For that to occur, the criteria in s 60 must be met.
The operation of the hotel business conducted at The Star Hotel in Bright has passed through various hands during the years since Mrs Simpson first worked there in 1976. On her behalf, Mr McKenney of Counsel argued that, on the sale by Venn Milner, as the Controller of M&S Whelan of its assets to Manuel Developments Pty Ltd (Manuel Developments), the purchaser, Manuel Developments did not acquire any liabilities. No adjustments were made in the documents. Presumably, Mr McKenney submitted, there was no adjustment because no employees had service of greater than five years with Manuel Developments.
Whether or not the employees of Manuel Developments had an entitlement to long service leave depended on whether they were regarded as having worked for the one employer. When Venn Milner took over the administration of M&S Whelan as Controller. In relation to the property of a corporation, s 9 of the Corporations Act 2001 (Corporations Act) defines a “controller” as:
“...
(a) a receiver, or receiver and manager, of that property; or
(b) anyone else who (whether or not as agent for the corporation) is in possession, or has control, of that property for the purpose of enforcing a security interest;
and has a meaning affected by paragraph 434F(b) (which deals with 2 or more persons appointed as controllers).”
A Controller assumes certain duties and responsibilities and has certain powers under Part 5.2 of the Corporations Act but it does not become the owner of the property of the corporation of which it has been appointed Controller. What it does is to enter into possession and assume control or the property of the corporation. If it is the case that Venn Milner was appointed as receiver to wind up M&S Whelan, it had power to carry on the hotel business under s 420C provided it had either the approval of either the liquidator or the Court. In carrying on the business, however, it would have done so as an agent of M&S Whelan in its capacity as receiver of its property.[94] It did not become the owner of that property or the employer of those who worked in the hotel business.
[94] Corporations Act; s 420C(3)
When Venn Milner sold the assets of M&S Whelan to Manuel Development, it did so with the approval of the liquidators, who were “consenting parties” to the contract. The assets included furniture, plant and equipment previously used in relation to the operation of the hotel business. Mrs Simpson’s employment with M&S Whelan was terminated by Venn Milner on 8 February 2015 and she started the following day, 9 February 2015, with Manuel Development. She continued to work in the hotel business as before and the assets transferred to Manuel Development were those that had been used in the hotel business. I think it reasonable to conclude that Mrs Simpson performed her duties in connection with those assets on 9 February 2015 as she had on 8 February 2015. Therefore, her circumstances fall within those described in s 60(8) of the LSL Act as qualified by s 60(7). That meant that Mrs Simpson was regarded as having been employed by Manuel Development from the date on which she first started employment in the hotel business.
There is no basis on the evidence that would permit Manuel Development to contract out of the provisions of Division 6 of Part 5 of the LSL Act under s 79. That means that, if the letter that Mrs Simpson was asked to sign on 21 July 2015 were in some way to be read as representing an agreement between her and Manuel Development, it has no effect by virtue of s 79. If it is to be read as some form of renunciation of her rights, the letter cannot be read as setting aside her entitlements under the LSL Act. She may choose not to pursue them but she has not made a statement to that effect. The letter purports to say that Manuel Development is not indebted to her in respect of long service leave. That statement is not consistent with the LSL Act and cannot stand in contradiction of any rights she has under it.
The fact that Manuel Development might have liabilities arising under the LSL Act does not answer the question whether Mrs Simpson was entitled to an advance in respect of long service leave. That is determined by reference to s 10 of the FEG Act. All of the relevant events occurred after 5 December 2012 when s 10 commenced. Mrs Simpson’s employment with M&S Whelan had ended. An insolvency event had happened to M&S Whelan after the commencement of s 10 on 5 December 2012. That event was the appointment of liquidators on 16 December 2013. The end of Mrs Simpson’s employment with M&S Whelan occurred after the appointment of those liquidators. She was owed a debt wholly attributable to an employment entitlement.
Going to paragraph (a) of the definition of a “long service leave entitlement” in s 6(3), her entitlement was the amount that she was entitled to under the LSL Act for long service leave that she had accrued at the end of her employment and had not taken. The reference to her employment in that definition is a reference to Mrs Simpson’s employment by the employer to whom the insolvency event has happened. Under the LSL Act, long service leave is accrued first by completing 15 years continuous employment with the one employer and then by completing subsequent five year periods of continuous employment with that one employer. In essence, the provisions of s 60 of the LSL Act ensure that mere changes in ownership do not affect an employee’s ability to accrue years of service and so entitlements under the FEG Act. At the end of her employment with M&S Whelan, Mrs Simpson had accrued long service leave and had not taken it. It may be that she had accrued part of a further period that would qualify her for further long service leave. In either and both cases, Mrs Simpson had an entitlement to that leave at the end of her employment with M&S Whelan.
I note that no provision was made in the sale of the M&S Whelan’s assets for its obligations under the LSL Act. Such provision could not be made for the sale was by its Controller of assets alone. That does not mean that the purchaser, Manuel Development, did not acquire a liability under the LSL Act but, equally, it does not mean that the sale in some way expunged M&S Whelan’s liability to Mrs Simpson under that legislation. It did not expunge the long service leave entitlement to which Mrs Simpson was entitled from M&S Whelan at the end of her employment. That is the entitlement to which the FEG Act has regard even though the amount of that entitlement would be calculated with regard both to its provisions and those of the LSL Act. The upshot is that Mrs Simpson meets the criteria in ss 10(1)(a) to (d) of the FEG Act.
There were no suggestions that she did not meet the remaining criteria in ss 10(1)(e) to (h). The fact that Mrs Simpson may have a claim against Manuel Development in relation to her long service leave does not take her outside those criteria. The debt owed to her at the end of her employment with M&S Whelan was owed to her by that corporation and not by Manuel Development. The liquidators would have been aware of employee entitlements in winding up the employer, M&S Whelan. Mrs Simpson was owed long service leave entitlements before the insolvency event, being the appointment of liquidators, occurred. Section 10(1)(f) requires the person to have taken reasonable steps before that event to be paid those debts. In the case of long service leave, the payment of the “debt” is by means of taking the leave. Under the LSL Act, there is no obligation to take long service leave at any particular time and there is no evidence that she was aware that M&S Whelan were not travelling well or that she should ask to take her long service leave. I am satisfied that she meets s 10(1)(f) in so far as it is practical to do so in relation to a long service leave entitlement. Finally, Mrs Simpson is an Australian citizen and has made an effective claim under the FEG Act.
For the reasons I have given, I affirm the decision of the Secretary dated 28 May 2015 and affirmed on 18 September 2015 in so far as it in so far as it decided that Mrs Simpson was employed as a casual employee and so not eligible for an advance under s 15(1) of the FEG Act in respect of annual leave, payment in lieu of notice and redundancy. In so far as it was decided that Mrs Simpson was not entitled to an advance in respect of long service leave, I set aside the decision and substitute a decision that Mrs Simpson is owed a debt attributable to a long service leave entitlement. I remit that part of the decision to the Secretary to calculate the amount of that advance.
I certify that the eighty-nine preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ………...............[sgd].......................................
Associate
Date of Hearing 8 April 2016
Date of Decision 25 July 2016
Counsel for the Applicant Mr Mark McKenney
Solicitor for the Applicant Ms Helen Collins
Nevin Lenne Gross
Solicitor for the Respondent Mr Lex Holcombe
HWL Ebsworth
Key Legal Topics
Areas of Law
-
Employment Law
-
Administrative Law
Legal Concepts
-
Appeal
-
Judicial Review
-
Statutory Construction
-
Remedies
22
7