Sklifoff v Chief Executive, Department of Treasury and Finance (for the Chief Executive, Department of Human Services) (No 2)

[2021] SASCA 134

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

SKLIFOFF v CHIEF EXECUTIVE, DEPARTMENT OF TREASURY AND FINANCE (FOR THE CHIEF EXECUTIVE, DEPARTMENT OF HUMAN SERVICES) (No 2)

[2021] SASCA 134

Judgment of the Court of Appeal  

(The Honourable Chief Justice Kourakis, the Honourable President Livesey and the Honourable Justice Bleby)

11 November 2021

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT

This is an application on costs following the Court’s decision to dismiss an appeal against a decision of the Full Bench of the South Australian Employment Tribunal on the proper construction of cl 21 of the South Australian Public Sector Wages Parity Enterprise Agreement: Salaried 2014 (2014 EA).

Held (by the Court):

1.That the respondent’s application for costs in accordance with the ordinary rule that costs follow the event applies.

2.That the appellants are to pay the respondent’s costs to be agreed or taxed.

Advance Resource Services Pty Ltd (Trading as Progress Couriers and Taxi Trucks) v Charlton (2008) 100 SASR 388; Treasurer for the State of South Australia v United Trades and Labour Council (Trading as SA Unions) (No 2) [2020] SASCFC 53, considered.

SKLIFOFF v CHIEF EXECUTIVE, DEPARTMENT OF TREASURY AND FINANCE (FOR THE CHIEF EXECUTIVE, DEPARTMENT OF HUMAN SERVICES) (No 2)
[2021] SASCA 134

Court of Appeal – Civil:  Kourakis CJ, Livesey P and Bleby JA

1. THE COURT:          On 23 September 2021 this Court dismissed an appeal brought by the appellants against a decision of the Full Bench of the South Australian Employment Tribunal (the Full Bench and SAET respectively) dismissing the appellants’ claim for penalty rates payable to them in their employment as youth workers at the Adelaide Youth Training Centre (AYTC) on the grounds that they were not provided with a meal break.  The appellants are only three of the 124 youth workers employed at the AYTC and there was no agreement that the decision on their claim would bind the respondent in respect of the others.  The respondent defended the claim on the ground that the appellants were provided with a crib break.  The Full Bench held that the opportunity afforded the appellants to resort to a staff kitchen to take something to eat or drink, and to take meals with the youths detained at the AYTC, were crib breaks.  In this Court the appellants contended that an opportunity to take food or sustenance while still on duty was not a crib break within the meaning of cl 21 of the South Australian Public Sector Wages Parity Enterprise Agreement: Salaried 2014 (the 2014 EA).  This Court rejected that construction of cl 21 of the 2014 EA and upheld the decision of the Full Bench.

2. The respondent applies for costs in accordance with the ordinary rule that costs follow the event.  The appellants contend that each party should bear its own costs, on the grounds that this Court has held that it may be appropriate to depart from the ordinary rule in the exercise of the costs discretion when a claim arises out of industrial disputation or unrest and may resolve that disputation or unrest by settling an industrial issue affecting a number of employers or employees or both.[1]

   [1]     Advance Resource Services Pty Ltd (Trading as Progress Couriers and Taxi Trucks) v Charlton [2008] SASC 118, (2008) 100 SASR 388; Treasurer for the State of South Australia v United Trades and Labour Council (Trading as SA Unions) (No 2) [2020] SASCFC 53.

3. We reject the appellants’ contention that it is appropriate to depart from the ordinary rule in this case for the following reasons.

4. First, this was a simple monetary claim brought by three employees on a quasi‑contractual provision, the adjudication of which would not bind any other of their colleagues.

5. Secondly, even though there had been an exchange of correspondence between the respondent and the Public Service Association on what constitutes a crib break, there was no extant industrial action, negotiations or arbitration. 

6. Thirdly, and importantly, the 2014 EA contemplated that a workplace flexibility agreement might be made to adapt the general terms of the 2014 EA to the circumstances of a particular workplace.  If agreed in writing, a negotiated workplace agreement applies as if incorporated as an appendix to the 2014 EA.  Clause 27 provides a grievance and dispute avoidance procedure which requires, in escalating order, discussions at workplace level and agency level before a referral for conciliation and, if necessary, arbitration.  Clause 28 of the 2014 EA provides a process for the variation of the 2014 EA in order to implement a workplace flexibility agreement.  The appellants eschewed a negotiated or arbitrated industrial resolution of their claim.  They chose instead to make a monetary claim in which they contended for a narrow construction of the broadly expressed terms of the 2014 EA which would limit the scope of any negotiated supplementary workplace agreement.  In that attempt they failed.

7. For the above reasons, the ordinary rule should be applied.  We order that the appellants pay the respondent’s costs to be agreed or taxed.