The Treasurer for the State of SA v United Trades and Labor Council of SA

[2019] SASC 177

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Permission to Appeal in Private)

THE TREASURER FOR THE STATE OF SA & ANOR v UNITED TRADES AND LABOR COUNCIL OF SA

[2019] SASC 177

Judgment of The Honourable Justice Bampton

21 October 2019

INDUSTRIAL LAW - SOUTH AUSTRALIA - APPEALS AND REFERENCES - TO SUPREME COURT

INDUSTRIAL LAW - SOUTH AUSTRALIA - INDUSTRIAL INSTRUMENTS - MAKING AND INTERPRETATION OF INDUSTRIAL INSTRUMENTS - MAKING OR INTERPRETATION OF PARTICULAR AWARDS OR AGREEMENTS - LEAVE PROVISIONS

INDUSTRIAL LAW - SOUTH AUSTRALIA - INDUSTRIAL INSTRUMENTS - AWARDS

Application for permission to appeal a judgment of the Full Bench of the South Australian Employment Tribunal to a Full Bench of the Supreme Court of South Australia – where the decision by the Tribunal was to provide for an increase to the maximum amount of leave loading payable under the Public Service (Recreation Leave Loading) Award – issue of whether entitlements which are related to, or fixed by reference to minimum award rates, are capable of adjustment as a consequence of a wage review – issue of interpretation and operation of s 100(1) of the Fair Work Act 1994 (SA).

Permission to appeal granted as proposed appeal raises a question of law as to the operation and scope of s 100(1) of the Fair Work Act 2009 (Cth) and is of general significance and importance.

Fair Work Act 1994 (SA) s 100(1); Fair Work Act 2009 (Cth) s 285(2); Supreme Court Civil Rules 2006 (SA) r 289(1)(c); Annual Wage Award Review 2017-18 [2018] FWCFB 3500 (Cth); Public Service (Recreation Leave Loading) Award (SA), referred to.

THE TREASURER FOR THE STATE OF SA & ANOR v UNITED TRADES AND LABOR COUNCIL OF SA
[2019] SASC 177

Application for Permission to Appeal in Private

1. BAMPTON J:      The Treasurer for the State of South Australia and the Chief Executive of the Department of the Premier and Cabinet (“the applicants”) seek permission pursuant to r 289(1)(c) of the Supreme Court Civil Rules 2006 (SA) to appeal a judgment of the Full Bench of the South Australian Employment Tribunal (“the Tribunal”), delivered 11 April 2019, and the declaration made by the Tribunal providing for a 3.5 per cent increase to the maximum amount of leave loading payable under the Public Service (Recreation Leave Loading) Award (SA) (“the Award”).[1]

   [1]    The notice of appeal was filed on 2 May 2019.  By letter dated 28 May 2019, the applicants requested that the question of permission not be determined by a single judge pursuant to r 289(2) until an affidavit had been filed in support of permission to appeal.  The affidavit was filed on 24 July 2019.  The application for permission was referred to my chambers on 2 October 2019.

2. The proposed grounds of appeal are that the Full Bench of the Tribunal erred in construing and applying s 100(1) of the Fair Work Act 1994 (SA) and wrongly found that there was a “principle” “attached to” the Fair Work Commission Annual Wage Award Review 2017–18 [2018] FWCFB 3500 (Cth) (“the FWC Decision”), namely that entitlements which are related to, or fixed by reference to minimum award wage rates, are capable of adjustment as a consequence of a wage review. The applicants’ primary contentions are that the Tribunal erred because:

   1No such principle is enunciated or laid down, or attached to the FWC Decision, rather the FWC Decision was concerned only with the variation of modern award minimum wages and the national minimum wage order, s 285(2) of the Fair Work Act 2009 (Cth);

   2The Fair Work Act 2009 (Cth) does not provide that entitlements which are related to or fixed by reference to minimum award rates are adjusted as a result of a wage review.

3. Thomas Conway Kidman, who is employed in the Industrial Relations and Policy Branch of the Department of Treasury and Finance as Director, Industrial Relations, deposes in his affidavit sworn on 23 July 2017, filed in support of this application, that the proposed appeal raises a question of general principle as to the operation of s 100(1) of the Fair Work Act 1994 (SA). It is submitted that the question of general principle applies to this matter, to both to future wage and entitlement cases and proceedings before the South Australian Employment Tribunal more generally. Mr Kidman further deposes that the Tribunal’s declaration will have a cost impact, the particulars of which are set out in paragraphs [7]‑[11] inclusive of the affidavit.

4. I am satisfied that the proposed appeal raises a significant question of law as to the operation and scope of s 100(1) of the Fair Work Act 1994 (SA) and the meaning as to when a relevant principle is “attached to” a decision or determination of the Commonwealth Fair Work Commission made under the Fair Work Act 2009 (Cth). The proposed appeal is also of general significance and importance as:

   1The declaration of the Tribunal increases the maximum leave loading contained in the Award by 3.5 per cent with retrospective effect from 1 July 2018;

   2The Award applies to employees (as at 30 June 2018 there were approximately 84,864 full time equivalent employees) engaged in the public service of South Australia;

   3The maximum leave loading contained in the Award applies to a significant number of employees in the South Australian public sector (who are not within the Public Service) as it is adopted and applied in a further six awards covering other public sector employees; and

   4The increase in maximum leave loading has significant financial consequences for the State, as the estimated cost to the State of 3.5 per cent is stated to be between $1.18 million and $1.3 million per annum.

5. I grant permission to appeal.