Tempo Services Ltd v Robinson

[2004] SASC 353

SUPREME COURT OF SOUTH AUSTRALIA

(Miscellaneous Appeal)

TEMPO SERVICES LTD v ROBINSON & ANOR

Reasons for Decision of The Honourable Justice Vanstone

11 November 2004

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT

Application for leave to appeal on question of interpretation of clause in Work Award - leave to appeal granted.

Industrial and Employee Relations Act 1994, s 191(1)(b), referred to.

TEMPO SERVICES LTD v ROBINSON & ANOR
[2004] SASC 353

Miscellaneous Appeal

1. VANSTONE J:     This is an application for leave to appeal against a decision of the Full Court of the Industrial Court, pursuant to s 191 of the Industrial and Employee Relations Act 1994.  Leave is sought in accordance with subsection 1(b) in particular.

2. The matter originated in two underpayment of wages claims heard before an Industrial Magistrate.  The result turned on the interpretation of the expressions “required to work permanently on afternoon or night shifts” and “employees who work permanently on such afternoon shifts at their own request”, appearing in clause E4(c) of the Private Contractors (Public Hospitals) Award.  The application of one or other of those expressions to a relevant worker results in payment of a penalty rate varying between 15 and 30 per cent above the usual rate.  Clause E4(c) provides as follows:

   c)     Permanent Afternoon or Night Shift

   Employees required to work permanently on afternoon or night shifts (as defined) shall be paid 30 per cent more than the ordinary rate prescribed in Clause B2 of this award, provided however, that employees who work permanently on such afternoon or night shifts at their own request, shall be paid the penalty rate prescribed in subclause (a)(i) hereof.

3. In dismissing the appeal before it, the Full Court essentially held that in order to meet the threshold requirement to work, it was enough for the worker to show that he was permanently obliged to work on an afternoon or night shift.  It was said that in order to activate the proviso the employer would need to point to a “specific and identifiable solicitation” by the employee.  The Court added that subsequent acquiescence in continuing to work a relevant shift and an expressed disinclination to change shifts would not amount to such a request.

4. I am satisfied from the affidavit material before me that this decision might well have significant financial implications, both past and future, not only for the applicant, but generally within the relevant industry.  In those circumstances and in view of my opinion that the interpretation contended for by the applicant is at least arguable, I have decided that leave to appeal should be given.

5. Accordingly my order is:

   Pursuant to s 191(1)(b) of the Industrial and Employee Relations Act 1994, the applicant herein has leave to appeal in terms of the draft Notice of Appeal.