Continuous service includes service in another state of Australia

The Western Australian Industrial Appeal Court (IAC) has upheld an appeal against a decision of the Full Bench of the Western Australian Industrial Relations Commission (WAIRC) where it held that ‘continuous service’ served by an employee in the ‘public sector’ does not include employment in the service of another state of Australia when calculating severance payment.

Proceedings in the WAIRC

The applicant, Mr Browne, accepted an offer of voluntary severance from the respondent under reg 13(2) of the Public Sector Management (Redeployment and Redundancy) Regulations 2014 (WA) (the Regulations). However, he contended that the method of calculation of service for the purposes of his redundancy payments ought to have been the same as the calculation for long service leave under the Long Service Leave General Order of the Industrial Commission (the General Order).  That is, where an employee has a period of service in another State or the Commonwealth, that service is deemed to be continuous service for the purposes of s 13(2) of the Regulations. Mr Browne argued that his service in the Tasmanian public service should be included as service with his service in the WA public service when calculating his entitlement to severance payment.

At first instance, Senior Commissioner Kenner found that for the purposes of reg 13(2) of the Regulations, ‘continuous service’ includes service in the employment of the Commonwealth or of another State. The Commissioner ordered that Mr Browne’s service in the Tasmanian public service be included when calculating his entitlement to severance payment.

Appeal to the Full Bench

By majority, the Full Bench upheld an appeal by the respondent and quashed the decision of the Commission. It determined that, in order to be entitled to severance payment, any continuous service in the public service must occur in Western Australia.

Commissioner Matthews, with whom Commissioner Emmanuel agreed, found that the term ‘public sector’ has the same meaning in the Regulations as it does in the Public Sector Management Act 1994 (PSM Act) where it means entities within the WA government. Commissioner Matthews held that the term ‘continuous service’ served by the employee in the ‘public sector’ requires service in the ‘public sector’ as defined by the PSM Act, but once that requirement is met, the General Order determines what is and what is not continuous service. As the respondent’s service in the Tasmanian Public Sector was continuous but was not served within meaning of the ‘public sector’, this service could not be included when calculating his entitlement to severance payment.

Acting President Smith dissented and found that the appeal should be dismissed. Her Honour found that the term ‘public sector’ should be defined as it is in the General Order and not the PSM Act.

Appeal to the IAC

Mr Browne then appealed to the Industrial Appeal Court.

Justices Buss and Murphy found that since the meaning of ‘continuous service’ is not defined in the General Order, it is to be discerned from an understanding of the provisions of the General Order and their operation.

Their Honours determined that the meaning of ‘continuous service’ requires consideration of context and purpose of the provision. They found that it is intended to pick up the actual period of any service in the public sector as defined under the General Order, and that the words ‘public sector’ are to be understood in light of that definition.

Their Honours found that the majority of the Full Bench erred in their interpretation of reg 13(2).

Justice Le Miere (concurring) found that since ‘continuous service’ is not a defined term in the General Order, the court must ascertain its meaning from the General Order having regard to its context, and then apply that meaning in reg 13(2) having regard to its context and purpose. He also found that the General Order enlarges the natural and ordinary meaning of ‘continuous service’.

Le Miere J determined that the enlarged meaning of continuous service by an employee under the General Order includes periods during which an employee is not employed by the Public Authority, including a period of employment in the service of another State. He found that ‘continuous service’ in reg 13(2) must be given in the same enlarged meaning in its context, that is the context of service by an employee in the Public Sector.

Consequently, Le Miere J found that ‘continuous service’ served by an employee in the ‘public sector’ includes employment in the service of another State of Australia.  

The IAC allowed the appeal and set aside the decision of the Full Bench. The IAC ordered that the declaration and order made by Senior Commissioner Kenner be reinstated.

The decision can be read here