WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2012 WAIRC 00447

DELIVERED : Thursday, 19 July 2012

CLAIM NO. : M 21 OF 2012

CLAIMANT

-v-

Stateships (Dept of Transport)

Respondent

Catchwords : Claim for 10.48 weeks’ pay in lieu of long service leave; Whether claimant is an employee within the meaning of the Long Service Leave Act 1958; Whether entitlement for long service leave accumulated whilst absent from work for a lengthy period due to work injury.

Legislation : Long Service Leave Act 1958

  Interpretation Act 1984

  Seafarers Rehabilitation and Compensation Act 1992 (Cth)

Instruments  : SeaCorp Coastal Shipping/Maritime Union of Australia Enterprise Agreement 2009

  Maritime Industry (Seaman, Cooks and Stewards) Long Service Leave Award 1995

Result : Claim Dismissed

Representation : Mr Barry Lawson appeared in person

  Mr L.A. Tsaknis (Counsel) instructed by Messrs Cocks MacNish appeared for the respondent

Reasons for Decision

Claim and Response

1         The claimant, Mr Barry Lawson, alleges that the respondent, “Stateships (Dept of Transport)”, has failed to comply with the Long Service Leave Act 1958 (the LSL Act) in that it has not paid him 10.48 weeks’ pay in lieu of long service leave.  Mr Lawson has not quantified how much money he says is owed to him.

2         The respondent denies liability.  It says that by virtue of section 4(3) of the LSL Act               Mr Lawson is not an “employee”.  It says that the question of Mr Lawson’s claim for an entitlement to long service leave is governed by a Commonwealth award.  Further, and in any event, even if it is the case that he falls within the provisions of the LSL Act, the period of his extended absence on workers’ compensation does not constitute continuous employment for the purposes of the accrual of an entitlement under the LSL Act.

Background

3         Mr Lawson retired on 2 August 2010. 

4         His work history is that he joined the Navy not long after leaving school and remained within it until 1982, a period of about 20 years. Thereafter, Mr Lawson held a number of different jobs both onshore and offshore. On 26 October 1988, he joined The Maritime Union of Australia (the MUA).  At that time the only way he could work within the maritime industry was through MUA membership and appointment. In 1991, Mr Lawson commenced working for the Western Australian Coastal Shipping Commission which operated as Stateships. In 1991, whilst working for Stateships, Mr Lawson tore the cartilage in his right knee. He was subsequently unable to work because of that injury and on 9 December 1994, he was declared unfit to return to his pre-accident occupation.  The Australian Government’s rehabilitation consultant, namely CRS Australia, who managed Mr Lawson’s rehabilitation was unable to assist him in obtaining appropriate alternative employment. Mr Lawson did not thereafter return to work and remained on workers’ compensation pursuant to the Seafarers Rehabilitation and Compensation Act 1992 (Cth) until his retirement.

5         In 1995, Stateships ceased to operate. Pursuant to a “Service Level Agreement” between the Department of Transport (the Department) and Stateships, the Department has, in its various guises, assisted in the administration of Mr Lawson’s workers’ compensation claim. The Department also administered his superannuation payments. Mr Lawson was allotted an employee number for those purposes.  As a consequence of having an employee number he received various correspondences from the Department, much of which was in generic form addressed to him as an employee.  He also received correspondence from the Government Employees Superannuation Board.  So far as Mr Lawson was concerned he regarded himself to be an employee of the Department because he was paid by the Department and in his view was subject to its directions.  In fact, Mr Lawson was never employed by the Department despite the fact that it paid him.

6         On 10 December 2007, Stateships sent Mr Lawson a letter about his long service leave.  In that letter Mr Lawson was informed that, because as at 9 December 1994 he had been certified medically unfit for a period greater than 6 months, under those circumstances, he would have been removed from the General Register of Seaman and paid out any entitlements at that time. The writer informed him also that the Seaman’s Engagement System and its associated long service leave scheme ended in 1998.  He was informed that another Commonwealth instrument governed his entitlements and that long service leave might accrue to him from 1 March 1998, subject to certain conditions being met.  The writer also told him that they believed that         Mr Lawson would not be entitled to long service leave payments whilst in receipt of compensation payments and that he could not receive both compensation and long service leave payments for the same period. 

7         The fact that Mr Lawson was sent the aforementioned letter is somewhat puzzling.  Mr Lawson told me that Stateships had folded. Further, it is common ground that Stateships ceased to operate in 1995 and that certain of its administrative functions were transferred to the Department.  It is unclear as to whether the entity “Stateships” continues to exist, and if so, in what capacity. In these circumstances the issue of the proper respondent looms large.  Is it Stateships or is it the Department?  The way in which Mr Lawson has run his case seems to suggest that he is pursuing his claim against the Department, despite having nominated both entities.

Determination

8         In the aforementioned letter (Exhibit 5), its unidentified author provided a history of the various industrial instruments that have materially covered Mr Lawson’s employment. It suffices to say that all of the instruments referred to are Commonwealth instruments.  In evidence Mr Lawson stated that in bringing this claim he relies on the Commonwealth SeaCorp Coastal Shipping/Maritime Union of Australia Enterprise Agreement 2009 (the Agreement).

9         Clause 20. Long Service Leave, of the Agreement, at Clause 20.1, provides:

“20.1 The provisions of the Maritime Industry (Seaman, Cooks and Stewards Offshore) Long Service Leave Award 1995 as varied will apply to Ratings under this agreement. The parties agree that should agreement be reached to vary the long service leave arrangements on an industry basis then such variation will apply to this Agreement.”

10      No evidence has been led concerning any variation to the Maritime Industry (Seaman, Cooks and Stewards) Long Service Leave Award 1995 (the Award).

11      The LSL Act is an Act to provide for the granting of long service leave to certain Western Australian employees and for matters incidental thereto. Only “employees” within the meaning of the LSL Act are entitled to long service leave under the LSL Act.  Pursuant to section 8(1) of the LSL Act, an employee is entitled to long service leave on ordinary pay in respect to continuous employment with the same employer, or with a person who, being a transmittee is deemed to be one and the same employer.  It follows that in order to succeed in this claim      Mr Lawson must satisfy me on the balance of probabilities that he was an “employee" within the meaning of section 4(1) of the LSL Act.

12      Section 4(1) of the LSL Act provides:

“employee means, subject to subsection (3) — 

(a) any person employed by an employer to do work for hire or reward including an apprentice;

(b) any person whose usual status is that of an employee;

(c) any person employed as a canvasser whose services are remunerated wholly or partly by commission or percentage reward; or

(d) any person who is the lessee of any tools or other implements of production or of any vehicle used in the delivery of goods or who is the owner, whether wholly or partly, of any vehicle used in the transport of goods or passengers if the person is in all other respects an employee;”

13      The definition of employee within the LSL Act is subject to section 4(3) which provides:

“4(3) Where a person is, by virtue of —

 (a)  an award or industrial agreement;

(b)  an employer-employee agreement under Part VID of the Industrial Relations Act 1979 or other agreement between the person and his employer; or

(c)  an enactment of the State, the Commonwealth or of another State or Territory,

entitled to, or eligible to become entitled to, long service leave at least equivalent to the entitlement to long service leave under this Act, that person is not within the definition of “employee” in subsection (1).”

14      Mr Lawson is required to satisfy me that he falls within the definition of “employee” as defined in the LSL Act. The evidence before me does not enable such satisfaction.  He has failed to satisfy me that he was ever employed by the Department in its various guises.  Further, and in any event, he was not at all material times an employee within the meaning of the LSL Act because he was entitled to or eligible to become entitled to long service leave under an enactment of the Commonwealth.  His case is firmly founded on the application of the Agreement and the Award, both of which are instruments made under an enactment of the Commonwealth.  Mr Lawson’s claim can only be heard and determined by a jurisdiction which is empowered by Commonwealth law to deal with such a matter.  This jurisdiction is not so empowered.

15      Even if Mr Lawson could establish that he is an “employee” within the meaning of the LSL Act he nevertheless faces insurmountable difficulty in establishing that he has been in continuous employment entitling him to a payment in lieu of long service leave.  Relevantly, section 6(1)(b) of the LSL Act provides:

“6(1) For the purposes of this Act employment of an employee whether before or after the commencement of this Act shall be deemed to include —

 ...

(b)  any period of absence from duty necessitated by sickness of or injury to the  employee but only to the extent of 15 working days in any year of his employment;”

16      Long service leave does not accrue during absences from duty occurring by reason of injury or illness of periods of more than 15 working days in any year of employment. I note that there is a similar provision in the Award.  It probably accounts for the advice given to Mr Lawson on 10 December 2007, which was that he could not receive both compensation and long service leave payments for the same period (see Exhibit 5).  It follows that Mr Lawson has not been able to satisfy me that he has been in continuous employment as required by section 8 of the LSL Act. All periods of absence due to his injury exceeding 15 days in each year cannot be taken into account.

17      Finally, and in any event, Mr Lawson has not produced any evidence which would otherwise support his claim. There is nothing before me which would enable a determination of the quantum of any entitlement.

18      The claim will be dismissed.

G. CICCHINI

INDUSTRIAL MAGISTRATE