2016 WAIRC 00843
APPEAL AGAINST A DECISION OF THE INDUSTRIAL MAGISTRATE IN MATTER NO. M 117 OF 2015 GIVEN ON 13 APRIL 2016

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2016 WAIRC 00843

CORAM
: THE HONOURABLE J H SMITH, ACTING PRESIDENT
CHIEF COMMISSIONER P E SCOTT
COMMISSIONER D J MATTHEWS

HEARD
:
TUESDAY, 7 JUNE 2016
WRITTEN SUBMISSIONS FRIDAY, 8 JULY 2016 AND FRIDAY, 12 AUGUST 2016

DELIVERED : WEDNESDAY, 26 OCTOBER 2016

FILE NO. : FBA 2 OF 2016

BETWEEN
:
BAKER HUGHES AUSTRALIA PTY LTD (ABN 20 004 752 050)
Appellant

AND

MARTIN VENIER
Respondent

ON APPEAL FROM:

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE'S COURT
CORAM : INDUSTRIAL MAGISTRATE G CICCHINI
CITATION : [2016] WAIRC 00210; (2016) 96 WAIG 325
FILE NO. : M 117 OF 2015

CatchWords : Industrial Law (WA) - Appeal against decision made by Industrial Magistrate's Court - Finding claimant's prior employment with related body corporates of the appellant and subsequent employment with the appellant was continuous employment with one and same employer for the purposes of calculating long service leave entitlements under s 8 of the Long Service Leave Act 1958 (WA) - Issue of construction of Long Service Leave Act - History of amendments made to Long Service Leave Act and Long Service Leave General Order considered - Error established - Words 'one and same employer' not unambiguous and do not include related bodies corporate - Far reaching 'gap' in 2006 amendments to Long Service Leave Act found that cannot be filled by reading words into s 8 of the Long Service Leave Act - Doctrine of piercing corporate veil considered
Legislation : Industrial Relations Act 1979 (WA) s 7(1), s 84(2)
Long Service Leave Act 1958 (WA) s 4(1), s 4(2)(b), s 5, s 6, s 6(2), s 6(4), s 6(5), s 8, s 8(1), s 8(2), s 8(3), s 8(4), s 8(5), s 8(6), s 8(7), s 8(8), s 8(9), s 8A, s 9, s 9(1), s 9(1a), s 9(1b), s 9(4), s 10, s 11
Corporations Act 2001 (Cth) s 9, s 46, s 47, s 48, s 50
Industrial Relations Legislation Amendment and Repeal Act 1995 (WA) s 46(1)(f)
Labour Relations Legislation Amendment Act 2006 (WA) pt 7, div 2 of pt 7, s 55(1), s 55(2), s 56(2), s 58(2), s 64, s 65, s 65(1), s 65(2), s 65(4)
Interpretation Act 1984 (WA) s 8, s 10, s 16, s 19, s 19(1), s 19(3)
Long Service Leave Act Amendment Act 1973 (WA) s 6
Industrial Arbitration Act 1912 (WA) (repealed) s 6, s 94A
Companies Act 1961 (WA) (repealed) s 6, s 6(5)
Labour and Industry Act 1958 (Vic) s 150(1), s 154(1)
Labour and Industry (Amendment) Act 1970 (Vic) s 151(1A)
Long Service Leave Act 1956 (Tas) s 8(1)
Industrial Conciliation and Arbitration Act 1952 (Qld) s 10B, s 10B(2)
Long Service Act 1955 (NSW)
Long Service Leave (Amendment) Act 1967 (NSW)
Long Service Leave Act 1957 (SA) (repealed)
Long Service Leave Act 1967 (SA)
Industrial Arbirtration Act 1979 (WA)
Labour Relations Reform Act 2002 (WA) s 185
Result : Appeal upheld - Order made
REPRESENTATION:
Counsel:
APPELLANT : MR A K SHARPE
RESPONDENT : MR M COX AND WITH HIM MS N BARSBY
Solicitors:
APPELLANT : K&L GATES
RESPONDENT : MDC LEGAL

Case(s) referred to in reasons:
ACN 007 528 207 Pty Ltd (in liq) v Bird Cameron [2005] SASC 204; (2005) 91 SASR 570
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27
Bropho v Western Australia (1990) 171 CLR 1
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427
Damevski v Guidice [2003] FCAFC 252; (2003) 133 FCR 438; (2003) 129 IR 53
Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267
DHN Food Distributors Ltd v London Borough of Tower Hamlets [1976] 3 All ER 462
DHN Food Distributors Ltd; Burswood Catering & Entertainment Pty Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch [2002] WASCA 354; (2002) 83 WAIG 201
Director General of Department of Transport v McKenzie [2016] WASCA 147
Du Buisson Perrine v Chan [2016] WASCA 18
Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440
Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586, 592; [2000] 2 All ER 109
Industrial Equity Ltd v Blackburn [1977] HCA 59; (1977) 137 CLR 567
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85
Pioneer Concrete Services Ltd v Yelnah Pty Ltd (1986) 5 NSWLR 254
Smith, Stone & Knight Ltd v Birmingham Corporation [1939] 4 All ER 116
Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531
The Commissioner for Corrective Services v RAJ [2014] WASC 338
The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [No 2] [2014] WASC 345
Van Heerden v Hawkins [2016] WASCA 42
Wentworth Securities Ltd v Jones [1980] AC 74
Case(s) also cited:
Anti-Doping Rule Violation Panel v XZTT [2013] FCAFC 95
Attorney-General (WA) v Her Honour Judge Schoombee [2012] WASCA 29
Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1
Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292
Brooks v Commissioner of Taxation (2000) 100 FCR 117
CFMEU v Endeavour Coal Pty Ltd [2015] FCAFC 76
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Federal Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 250 CLR 523
IW v City of Perth (1997) 191 CLR 1
Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622
Lindner Pty Ltd v Builders Licensing Board [1982] 1 NSWLR 612
Marshall v Watson (1972) 124 CLR 640
Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214
Moody v French [2008] WASCA 67
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Gee [2003] HCA 12
R v Lavender [2005] HCA 37
R v Young [1999] NSWCCA 166
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
Sandoval v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 71
SM v R [2013] VSCA 342
SM v The Queen (2013) 237 A Crim R 14
The Pilbara Infrastructure Ltd v Brockman Iron Pty Ltd [2016] WASCA 36
Thiess v Collector of Customs (2014) 250 CLR 664
Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510
Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797
Victims Compensation Fund v Brown (2002) 54 NSWLR 668
Waller v Hargraves Secured Investments Ltd (2012) 245 CLR 311
Wik Peoples v Queensland (1996) 187 CLR 1

Reasons for Decision
SMITH AP:
Introduction
1 This appeal is instituted under s 84(2) of the Industrial Relations Act 1979 (WA) (the IR Act). Baker Hughes Australia Pty Ltd (ABN 20 004 752 050) (the appellant) appeals against a decision of the Industrial Magistrate's Court in M 117 of 2015 on grounds that the learned Industrial Magistrate erred in determining a preliminary issue.
2 By consent the learned Industrial Magistrate answered the following question as a preliminary issue:
Is the applicant's (claimant's) prior employment with related body corporates (as that term is defined in section 50 of the Corporations Act (Cth)) of the respondent, and his subsequent employment with the respondent, 'continuous employment with one and the same employer' for the purposes of calculating long service leave entitlements under section 8(1) of the Long Service Leave Act 1958 (WA)?
3 After hearing argument the learned Industrial Magistrate answered the question 'Yes'. In this appeal the appellant argues that the answer should have been given as 'No'.
4 The relevant facts asserted by the respondent are as follows:
(a) The respondent was employed by 'Baker Hughes' or its related body corporates from 28 November 1988 until 16 July 2015.
(b) Whilst in the United Kingdom, on 28 November 1988 the respondent began employment with Teleco Oilfield Services. In 1992, Teleco Oilfield Services became a division of Baker Hughes but that did not interrupt the continuity of his service. In December 1996, the respondent was promoted to a position within INTEQ Drilling Services, a division of Baker Hughes. On 29 July 2005, the respondent assumed a different role with International Professional Resources, S, de R.L. (IPRS), another related body corporate of Baker Hughes. On 7 May 2006, the respondent was promoted within IPRS and relocated to China. On 30 July 2008, the respondent was transferred in his employment to the appellant.
(c) The respondent entered into a written employment agreement with the appellant prior to commencing with it. Clause 12 of that employment agreement provides that he is entitled to long service leave in accordance with the legislation applicable in Western Australia.
(d) The respondent claims he is entitled to 23.01 weeks' long service leave, not taken or paid out, on the basis of 26.64 years' continuous service with the appellant and/or its related body corporates.
5 The appellant denies the respondent is entitled to long service leave and says that the respondent has not met the threshold requirement of seven years' continuous service with the respondent. In particular, it says that the respondent's previous service with various Baker Hughes entities prior to 30 July 2008 cannot be considered for the purposes of calculating long service leave entitlements under the Long Service Leave Act 1958 (WA) (LSL Act).
6 For the purpose of determining the preliminary issue, the parties agreed the following facts:
(a) The respondent entered into an employment agreement with the appellant on 30 July 2008 and had commenced employment by or about 2 November 2008.
(b) The termination of the respondent's employment with the appellant was effected on 16 July 2015.
(c) The respondent's employment with the appellant was for a term of less than seven years.
(d) The appellant is a related body corporate (as defined in s 50 of the Corporations Act 2001 (Cth)) of Baker Hughes Incorporated, a company incorporated in the United States of America.
7 Section 8(1) of the LSL Act provides:
An employee is entitled in accordance with, and subject to, the provisions of this Act, to long service leave on ordinary pay in respect of continuous employment with one and the same employer, or with a person who, being a transmittee, is deemed pursuant to section 6(4) to be one and the same employer.
8 The respondent argued at first instance that the concept of related entities in s 50 of the Corporations Act is a current and convenient version of an aid to inform the interpretation and application of the phrase 'one and the same employer' in s 8(1) of the LSL Act.
9 The respondent's argument about the proper construction of the words 'one and the same employer' in s 8(1) of the LSL Act turns substantially on the effect of amendments made to the LSL Act in 1995 and 2006.
10 In 1995, the definition of 'employer' in the LSL Act was amended from the 'singular' to 'plural' by s 46(1)(f) of the Industrial Relations Legislation Amendment and Repeal Act 1995 (WA).
11 Since 1995, s 4(1) of the LSL Act provides:
In this Act unless the context requires otherwise —
employer includes — 
(a) persons, firms, companies and corporations; and
(b) the Crown and any Minister of the Crown, or any public authority,
employing one or more employees;
12 In 2006, pt 7 of the Labour Relations Legislation Amendment Act 2006 (WA) amended the LSL Act to improve long service leave entitlements under the LSL Act and abolish and preserve entitlements to long service leave by employees covered by the Long Service Leave General Order ((1978) 58 WAIG 120) as set out in the schedule to the LSL General Order ((1978) 58 WAIG 1). In these reasons, the schedule is referred to as the LSL General Order.
13 The respondent put an argument that given that 'employer' has been defined in s 4(1) of the LSL Act since 1995 to include the plural of person, firm, company and corporation, and when regard is had to the history of the 2006 amendments and when a purposive approach together with the principle that legislation is to be interpreted as always speaking is applied to the construction of the words 'one and the same employer', they should be given an ambulatory operation so as to include employment with related entities.
The Industrial Magistrate's reasons for decision
14 His Honour firstly set out the following basic principles of statutory construction:
(a) statutory construction must begin with a consideration of the statutory text;
(b) context and purpose are also important as surer guides to meaning; and
(c) the modern approach to statutory interpretation uses ''context'' in its widest sense.
15 His Honour then found that regard must be had to the statutory text as a starting point. After setting out s 8(1) of the LSL Act his Honour had regard to the provisions of s 6(4) and s 6(5) of the LSL Act which define a period of employment with a transmittor to be deemed to be employment of the employee with the transmittee.
16 His Honour observed that the LSL Act does not define 'one and the same employer', but it does in s 4(1) define 'employer' to include persons, firms, companies and corporations.
17 The learned Industrial Magistrate found that:
(a) it is of considerable significance that the definition of employer is framed in plurals;
(b) it could quite easily have been framed in the singular but was not; and
(c) it contemplates more than one.
18 His Honour then found that as s 6(4) and s 6(5) of the LSL Act are couched in the singular, there would have been no need for the term 'employer' to have been defined in those provisions as those provisions include any number of previous employers. Thus, the circumstance of transmission does not require plurality in the definition of employer.
19 His Honour went on to find that:
(a) the phrase 'one and the same employer' is not as clear and unambiguous as is suggested;
(b) what is meant by it having regard to the definition of employer is obscure and requires construction; and
(c) the phrase is not so definitive so as to import the limitations which the appellant asserts.
20 The learned Industrial Magistrate then found that:
(a) it was necessary to construe the term having regard to context and purpose;
(b) the objects of the LSL Act must be considered and resort may be had to its historical context in order to achieve that end;
(c) when regard is had to the principle that a liberal construction is necessary to give the words used an ambulatory operation that process is neither unreasonable nor unnatural given that the LSL Act is beneficial legislation;
(d) resort may be had to extrinsic material which assists in the construction process. Such is permitted by s 19 of the Interpretation Act 1984 (WA); and
(e) the phrase 'one and the same employer' must be construed according to its true specific intent and meaning (s 8 of the Interpretation Act).
21 The learned Industrial Magistrate had regard to the following matters which he regarded as having historical significance and gave context to the meaning of s 8(1) of the LSL Act:
(a) The LSL Act commenced operation on 24 December 1958 and s 8(1) of the LSL Act has, other than for a stylistic change, remained unchanged since then. However, the current meaning of employer is different to the meaning given to that term when the LSL Act was first enacted.
(b) In 1973, s 8A (now repealed) was inserted into the LSL Act by s 6 of the Long Service Leave Act Amendment Act 1973 (WA). Section 8A provided:
Notwithstanding any other provision in this Act in the event of an agreement between the Western Australian Employers' Federation (Incorporated) and the Trades and Labor Council of Western Australia or a determination of the Commission in Court Session varying from time to time any of the provisions for qualifications or entitlement to long service leave as contained in volume fifty-two of the Western Australian Industrial Gazette at pages sixteen to twenty-one, both inclusive, for the majority of awards which those provisions have been incorporated in and from part of, the qualifications and entitlement of employees to long service leave shall forthwith thereafter be varied accordingly.
(c) On 15 December 1977, the Commission in Court in Session, under s 94A of the (now repealed) Industrial Arbitration Act 1912 (WA), made the LSL General Order varying awards and industrial agreements to incorporate new long service leave provisions ((1978) 58 WAIG 120). The LSL General Order expressly stated an intention that service with related entities be considered as service with 'one and the same employer'.
(d) Section 6 of the Companies Act 1961 (WA) (repealed) defined when a corporation was deemed to be a subsidiary of another and when corporations were deemed to be related. That definition was adopted for the purpose of cl 4 of the LSL General Order.
(e) During the whole period of the operation of the LSL General Order from 1977 to 2006, at which time cl 4 applied, the original phrase in s 8 of the LSL Act of 'one and the same employer' was constant. An employee's service with related entities was deemed continuous service with 'one and the same employer'.
(f) Section 8A of the LSL Act was repealed in 2006 and the LSL General Order ceased to have effect. The stated intention of the repeal was to consolidate and incorporate all long service leave entitlements under the LSL Act, without loss of any entitlements to employees.
(g) In the explanatory memorandum to its repealing legislation a statement was made in c1 247 that employees are not disadvantaged if their LSL entitlement becomes governed by the LSL Act rather than the LSL General Order.
(h) Parliament's intention in repealing the LSL General Order was to remove the duplication of long service leave entitlements in various instruments and consolidate them and the LSL General Order into the LSL Act. The explanatory memorandum stated this intention in c1 271.
(i) As the terms of the LSL General Order were to be incorporated into the LSL Act, Parliament considered the continued operation of s 8A of the LSL Act to be unnecessary.
(j) The fact that Parliament did not amend the LSL Act to expressly incorporate cl 4 of the LSL General Order is attributable to the term 'one and the same employer' including related companies. Otherwise, the effect of the amendment would have left some employees worse off. Such an outcome is inconsistent with Parliament's intention, reflected in the second reading speech where it was stated:
The bill will amend the Long Service Leave Act 1958 and the Construction Industry Portable Paid Long Service Leave Act 1985 to improve long service leave entitlements. Private sector long service leave entitlements in Western Australia lag behind those in all the other states and territories.
(k) In consolidating long service leave entitlements and incorporating the LSL General Order into the LSL Act, Parliament had the intention that service with related entities be considered service with 'one and the same employer' under the LSL Act, just as it did in the LSL General Order.
(l) Denying long service leave to long serving employees of related entities is inconsistent with the historical application of the LSL Act and is inconsistent with the stated purpose of the amending legislation.
22 Alternatively, the learned Industrial Magistrate found that even if the LSL Act lacks the words required to give effect to the claimant's contentions, it was an inadvertent oversight which is explicable by the following:
(a) the LSL General Order provided coverage of service with related entities from 1977 until 2006;
(b) Parliament's intention in 2006 was to consolidate all long service leave entitlements without disadvantaging employees whose long service leave entitlements had been governed by the LSL General Order; and
(c) there was a lack of transitional provisions dealing with the loss of entitlement for those who had accumulated continuous service working for related entities.
23 The learned Industrial Magistrate had regard to the principle that it would be permissible to read in the words that the Parliament would have used to overcome the omission, provided that there is certainty about the words. He then found that it was possible to state with certainty the words Parliament would have used. These words were 'related company', as expressed in the LSL General Order. In particular:
(a) the reference in the LSL General Order to the Companies Act could be deemed to include a reference to that law as amended by applying s 16 of the Interpretation Act; and
(b) as the Companies Act was repealed and replaced and superseded by the Commonwealth Corporations Act defining 'related body corporate' by reference to s 50 of the Corporations Act was entirely appropriate.
The grounds of appeal
24 The grounds of appeal are as follows:
1. In the absence of any reference to the concept of 'related body corporate' or the Corporations Act 2001 (Cth) in the Long Service Leave Act 1958 (WA), the learned Magistrate's construction is inconsistent with:
(a) the principle that the task of statutory construction must both begin and end with the statutory text; and
(b) the requirement that a court construe a written law and not rewrite it by reference to its purpose or objects.
2. The learned Magistrate erred in concluding that it was of considerable significance to the construction of the phrase 'one and the same employer' that the definition of 'employer' in the Long Service Leave Act is framed in plurals because:
(a) the definition of 'employer' in section 4(1) of the Long Service Leave Act applies 'unless the context requires otherwise' and the context given by 'one and the same' requires otherwise; and
(b) further and alternatively, section 10(c) of the Interpretation Act provides that 'words in the singular number include the plural and words in the plural number include the singular'.
3. The learned Magistrate erred in concluding that the meaning of the expression 'one and the same employer' is obscure when the expression is actually an emphatic reference to a single legal entity and this error, in turn, led the learned Magistrate to err by having regard to extrinsic materials pursuant to section 19(1)(b)(i) of the Interpretation Act.
4. Alternatively to ground 3:
(a) the learned Magistrate should not have given consideration to the extrinsic materials referred to by the learned Magistrate because of the desirability of persons being able to rely on the ordinary meaning conveyed by the text of a provision as specified in section 19(3)(a) of the Interpretation Act, and
(b) further and alternatively, the learned Magistrate should not have taken the extrinsic materials into account because they did not correctly state the law as provided in the Long Service Leave Act.
5. The learned Magistrate erred in concluding that it was necessary to give the phrase 'one and the same employer' a liberal interpretation because the Long Service Leave Act is beneficial legislation when the Magistrate should have concluded that 'one and the same' are words of limitation which should be interpreted according to their terms.
6. The learned Magistrate erred in concluding that employment with a related body corporate was an implied exception to the requirement that employment must be for 'one and the same employer' when the Long Service Leave Act already provides for an express exception to this requirement in section 6(4) of the Act and so no other exception could be implied.
7. Given that the Parliament did not amend section 8(1) in 2006, the learned Magistrate:
(a) erred in construing section 8(1) by reference to Parliament's intention in 2006 rather than Parliament's intention when section 8(1) was enacted; and
(b) further and alternatively, erred in concluding that the meaning of section 8(1) changed in 2006.
8. The learned Magistrate erred in 'reading in' words to the Long Service Leave Act to address the Parliament's perceived 'inadvertent oversight' in failing to amend section 8(1) in 2006 because:
(a) it was not permissible for the learned Magistrate to 'read in' the concept of a 'related company' to fill a perceived gap in the legislation; and
(b) further and alternatively, the learned Magistrate erred in concluding that it was possible to state with certainty the words which the Parliament would have used to address the perceived oversight.
9. The learned Magistrate erred in 'reading in' to the Long Service Leave Act the definition in section 50 of the Corporations Act when:
(a) section 8(1) of the Long Service Leave Act was enacted prior to section 50 of the Corporations Act and so the Parliament could not have intended section 50 of the Corporations Act was to be 'read in' to section 8(1) of the Long Service Leave Act when section 8(1) was enacted;
(b) further and alternatively, the term 'read in' by the learned Magistrate was 'related company' and section 50 of the Corporation Act defines when 'bodies corporate' are related; and
(c) further and alternatively, it is not permissible to 'read in' to Western Australian legislation a definition enacted by another Parliament, namely the Commonwealth Parliament.
Relevant principles of statutory construction - did the learned Industrial Magistrate err in his approach?
25 Meaning must be determined not only within the statute as a whole but also in context. Thus, it is artificial to focus on words in a statute in isolation.
26 The proper general approach to statutory construction is purposive. The general principles that apply to the construction of a statute were recently summarised by Buss P in Director General of Department of Transport v McKenzie [2016] WASCA 147 wherein his Honour observed [45] - [48]:
In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, French CJ, Hayne, Crennan, Bell and Gageler JJ observed:
'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text' (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]). So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself [39].
See also Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [31] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ); Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] (French CJ, Hayne, Kiefel, Gageler & Keane JJ).
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament's intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy. See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ).
The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed. See CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).
The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. See Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J). The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).
27 Similar observations were made by Buss JA in Van Heerden v Hawkins [2016] WASCA 42 [93] - [96].
28 When construing the words in a statute regard can be had to extrinsic materials when permitted to do so pursuant to s 19 of the Interpretation Act. Section 19(1) and s 19(3) of the Interpretation Act expressly provides for the following circumstances where regard can be had to extrinsic material to assist in the ascertainment of the meaning of a provision:
(1) Subject to subsection (3), in the interpretation of a provision of a written law, if any material not forming part of the written law is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material — 
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; or
(b) to determine the meaning of the provision when — 
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law leads to a result that is manifestly absurd or is unreasonable.
(3) In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to — 
(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; and
(b) the need to avoid prolonging legal or other proceedings without compensating advantage.
29 Section 19 of the Interpretation Act does not constitute a code. At common law, regard can be had to extrinsic materials to ascertain the mischief to be remedied by a statute: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85, 99 - 100 (Toohey, Gaudron and Gummow JJ), (112 - 113) (McHugh J).
30 Yet, caution must be exercised when regard is had to extrinsic materials. Explanations in extrinsic materials cannot supplant the meaning conveyed by the text. In Van Heerden, Buss JA observed [102]:
As Crennan J noted in Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619, '[s]econdary material seeking to explain the words of a statute cannot displace the clear meaning of the text of a provision (Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529 at 538 [22] per Gleeson CJ, Gummow, Hayne and Heydon JJ), not least because such material may confuse what was 'intended ... with the effect of the language which in fact has been employed' (Hilder v Dexter [1902] AC 474 at 477 per Earl of Halsbury LC)' [99]. That statement of principle applies to extrinsic evidence admissible at common law and also to extrinsic evidence admissible under s 19 of the Interpretation Act. In other words, the statutory text, and not non-statutory language seeking to explain the statutory text, is paramount. See Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 [22] (Gleeson CJ, Gummow, Hayne & Heydon JJ).
31 When construing legislation, regard is also to be had to an express provision in the legislation that defines terms within the legislation. Definitions are, however, merely aids to interpretation. As Buss JA said in Van Heerden [103]:
The function of a definition in a statute is not, except in rare cases, to enact substantive law. Rather, its function is to provide aid in construing the substantive enactment that contains the defined term. The meaning of the definition depends on the context, and the purpose or object, of the substantive enactment. See Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 [103] (McHugh J); Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 [12] (McHugh J); s 6 of the Interpretation Act.
32 In Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216, McHugh J explained [84]:
[A] legislative definition is not or, at all events, should not be framed as a substantive enactment. In Gibb v Federal Commissioner of Taxation ((1966) 118 CLR 628 at 635), Barwick CJ, McTiernan and Taylor JJ stated:
'The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense - or are to be taken to include certain things which, but for the definition, they would not include ... [Definition] clauses are ... no more than an aid to the construction of the statute and do not operate in any other way.' (Emphasis added.)
33 Then in Kelly McHugh J said [103]:
As I earlier pointed out, the function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better - I think the only proper - course is to read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment.
34 Also of importance in construction of legislative provisions where terms are defined is the principle that definitions can be displaced by an express or implied contrary intention. In this matter, the definition of 'employer' in s 4(1) of the LSL Act is expressly subject to a contrary intention.
35 As French CJ observed in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 [6]:
The exclusion of a particular definition where a 'contrary intention' appears would be implied in any event (In the Matter of The Fourth South Melbourne Building Society (1883) 9 VLR(E) 54 at 58 per Holroyd J; Buresti v Beveridge (1998) 88 FCR 399 at 401 per Hill J). A contrary intention may appear from context or legislative purpose. But, as Pearce and Geddes observe (Pearce and Geddes, Statutory Interpretation in Australia, 6th ed (2006) at 196 [6.1]):
'A good drafter will indicate 'the contrary intention' clearly.'
36 Thus, the question to ask is whether there is a contrary intention shown in the provision where the expression as defined in the Act is used: Pearce and Geddes, Statutory Interpretation in Australia, 8th ed (2014) (318 - 319) [6.67].
37 In this matter, it could be said that it is not necessary to determine whether a contrary intention is shown in s 8(1) of the LSL Act so as to require the term 'one and the same employer' to be construed as the singular. This is because pursuant to s 10 of the Interpretation Act words in the plural include the singular. However, the test whether the singular will include the plural and vice versa is whether a contrary intention appears. Consequently, s 10 of the Interpretation Act does not add to the task of construction in this appeal.
38 Another issue that must be considered is the definition of 'employer' in s 4(1) of the LSL Act is expressed to be defined not by the word 'means' but by the word 'includes'. In Du Buisson Perrine v Chan [2016] WASCA 18 Newnes JA observed [56] - [57]:
It is the case that where 'includes' (as opposed to 'means') is used in a statutory definition it will ordinarily not be intended to be exhaustive but rather simply to enlarge the ordinary meaning of the term to bring within it something that would otherwise not be within it: Owen v Menzies [2012] QCA 170; [2013] 2 Qd R 327 [106]; Transport Accident Commission v Hogan [2013] VSCA 335 [47]. It may also be used to avoid possible uncertainty by expressly providing for the inclusion of particular borderline cases: Corporate Affairs Commission (SA) v Australian Central Credit Union (1985) 157 CLR 201, 206 - 207.
Nevertheless, 'includes' may be exhaustive if the context in which it appears reveals that intention: YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395, 398 - 399, 402; Dilworth v Commissioner of Stamps [1899] AC 99, 106. Ultimately the question is always one of the proper construction of the statute.
39 That is, whether the word 'includes' is intended to enlarge the matters defined turns on what is the proper construction of the definition. Consequently, in this matter the intention conveyed by the words 'one and the same employer' in s 8(1) of the LSL Act is to be determined by:
(a) whether the definition of 'employer' in s 4(1) of the LSL Act should be construed as singular or plural, and, in any event, regard is to be had to the definition as an aid to the construction of the material words in s 8(1) of the LSL Act and not as an independent substantive enactment without being read as part of s 8(1); and
(b) within the context of the LSL Act as a whole having regard to the general purpose and policy of the provision and history of legislative amendments to the LSL Act, including extrinsic materials. As Buss JA said in Van Heerden, when undertaking this task of construction the statutory language is paramount [102].
Long service leave legislation in other States
40 The precondition of service created by the words with 'one and the same employer' is language that was used across Australia in statutory provisions in Victoria, Tasmania and Queensland when legislation was enacted in the mid-20th century to provide for entitlements to long service leave in these States. It is notable that subsequent amendments were made to legislation in Victoria, Tasmania, Queensland, New South Wales and South Australia to provide for service with related bodies corporate as continuous service.
41 The table in attachment B to the appellant's further submissions filed on 8 July 2016 comparing amendments to long service leave provisions in State and Territory legislation concerning related or associated bodies corporate shows that:
(a) (i) Section 150(1) of the Labour and Industry Act 1958 (Vic) when enacted provided that:
'Employer' means any person employing a worker and includes the Crown.
(ii) Section 154(1) provided that:
Subject to this Division every worker shall be entitled to long service leave on ordinary pay in respect of continuous employment with one and the same employer.
(iii) By the enactment of the Labour and Industry (Amendment) Act 1970 (Vic), s 151(1A) was inserted to provide:
In respect of a worker employed by a corporation, any period of employment with a corporation which by virtue of subsection (5) of section 6 of the Companies Act 1961 is deemed to be related to the first-mentioned corporation shall, for the purpose of calculating the period of continuous employment of that worker, be deemed to be employment with that first mentioned corporation.
(b) The Long Service Leave Act 1956 (TAS) when enacted contained the same definition of employer in s 2(1) as the Victorian Act. Section 8(1) of the Tasmanian Act was also in the same terms as s 154(1) of the Victorian Act. In 1972, the Tasmanian Act was amended to provide for employment to be regarded as continuous when an employee transferred to an associated company.
(c) Section 10B(2) of the Industrial Conciliation and Arbitration Act 1952 (Qld) provided that the entitlement of any and every employee to long service leave on full pay shall be in respect of his continuous service with one and the same employer. Section 10B was amended in 1958 to deem service of an employee transferred to another employer as if they were the one and same employer.
(d) The Long Service Act 1955 (NSW) when enacted referred to service with an employer. By the enactment of the Long Service Leave (Amendment) Act 1967 employment with a holding company or a subsidiary was deemed not to break continuity of service with an employer.
(e) Similar amendments were made to the Long Service Leave Act 1957 (SA). When enacted, continuous service was referred to as service with an employer. In 1967, this Act was repealed and replaced with the Long Service Leave Act 1967 which deemed associated companies or related companies to be deemed one employer.
42 It appears, however, that the words 'one and the same employer' have not been judicially considered in any reported decisions of courts and tribunals in these States. Yet, it is clear as the appellant points out in its supplementary written submissions that the other State jurisdictions which used the phrase 'one and the same employer' amended their legislation to provide that service with related or associated bodies corporate be included in the calculation of any entitlement to long service leave. The appellant also points out that one of these amendments were made as early as 1958, the year the LSL Act was originally enacted.
Relevant history of amendments to the entitlements of employees employed by private employers to long service leave in Western Australia
43 It appears from the reasons for decision of the learned Industrial Magistrate that when the explanatory memorandum to the 2006 amendments to the LSL Act are considered in the context of the LSL Act as a whole together with specific amendments to the text of the LSL Act in 1995 and 2006 and the relevant history of the differences between the provisions of the LSL Act and the LSL General Order, that his Honour erred in the findings his Honour made about the mischief the 2006 amendments sought to remedy. Further, importantly for the disposition of this appeal, in my opinion his Honour erred in the interpretation of 'one and the same employer' in s 8(1) of the LSL Act.
44 In 1958, the Parliament of Western Australia enacted the LSL Act. The LSL Act came into force soon after the Commission made an order, by consent, inserting into most awards and industrial agreements long service leave provisions to provide for 13 weeks' long service leave after 20 completed years of continuous service to workers employed in private industry ((1958) 38 WAIG 261).
45 In 1964, by consent, long service leave clauses in awards and industrial agreements were amended by a Commission in Court Session applicable in private industry to provide for 13 weeks' leave after 15 years' continuous service ((1964) 44 WAIG 606 (1964 consolidation)).
46 By operation of amendments made to the LSL General Order on 27 January 1978, by consolidation by the Commission in Court Session, the terms prescribed in the LSL General Order were prescribed in each award and industrial agreement in force on 31 December 1977 ((1978) 58 WAIG 120).
47 Prior to the 2006 amendments, the LSL Act only applied to certain private sector employees whose employment was not regulated under the IR Act, that is it did not apply to employees whose employment was regulated by an award or industrial agreement made by the Commission.
48 Of particular importance, prior to 2006, both the LSL Act and the LSL General Order created an entitlement to long service leave for 'continuous service' for specified periods with 'one and the same employer'.
49 Also, importantly, the entitlements to long service leave under the LSL Act and the LSL General Order were not identical at any material time. Nor did the amendments made to the LSL Act in 2006 reflect an enactment of all entitlements and conditions of taking of long service leave as provided for in the LSL General Order.
(a) The LSL General Order
50 Pursuant to cl 2(1) of the LSL General Order an employee (described as a worker) was entitled to long service leave as provided in the order for 'continuous service' with 'one and the same employer'.
51 Prior to the enactment of the IR Act in 1979, employees were described in s 6 of the Industrial Arbitration Act 1912 as a 'worker'. A 'worker' was defined to mean if not inconsistent with the context, a person of not less than 14 years of age of either sex employed or usually employed by an employer. An 'employer' was defined in the plural, if not inconsistent with the context, to include among others, persons, firms, companies and corporations.
52 Prior to the consolidation of the LSL General Order by the Commission in Court Session on 27 January 1978, the LSL General Order was last consolidated on 23 September 1964. The 1964 consolidation of the LSL General Order was reprinted each year in the Industrial Gazettes. In a reprint of the 1964 consolidation, published on 26 January 1977, the only circumstance where service with another employer was deemed to be 'continuous service' was where a business had been transmitted from one employer to another ((1977) 57 WAIG 1). The terms of the 1964 consolidation applied unamended until the Commission in Court Session made substantial amendments to the LSL General Order on 27 January 1978 ((1978) 58 WAIG 120) published on 25 January 1978 ((1978) 58 WAIG 1) which took effect from 1 January 1978.
53 In the 1978 consolidation (which remained unamended until abolished by the Labour Relations Legislation Amendment Act 2006 (WA)), an amendment to cl 2 of the 1964 consolidation was made by inserting a new subclause (4) to deem service by an employee as 'continuous service' in employment with a related company to be in fact service with the company by whom he or she is last employed. The subclauses within cl 2(4) of the LSL General Order appear to be a replication of s 6 of the Companies Act. Clause 2(5) was renumbered to cl 2(6) and also amended. Clause 2(4) of the 1978 consolidation provided:
Where, over a continuous period, a worker has been employed by two or more companies each of which is a related company within the meaning of Section 6 of the Companies Act 1961 the period of the continuous service which the worker has had with each of those companies shall be deemed to be service of the worker with the company by whom he is last employed.
Section 6 reads-
(1) For the purposes of this Act, a corporation shall, subject to the provisions of subsection (3) of this section, be deemed to be a subsidiary of another corporation, if,
(a) that other corporation-
(i) controls the composition of the board of directors of the first mentioned corporation;
(ii) controls more than half of the voting power in the first mentioned corporation; or
(iii) holds more than half of the issued share capital of the first mentioned corporation excluding any part thereof which carries no right to participate beyond a specified amount in a distribution of either profits or capital; or
(b) the first mentioned corporation is a subsidiary of any corporation which is that other corporation's subsidiary.
(2) For the purpose of subsection (1) of this section, the composition of a corporation's board of directors shall be deemed to be controlled by another corporation if that other corporation by the exercise of some power exercisable by it without the consent or concurrence of any other person can appoint or remove all or a majority of the directors; and for the purposes of this provision that other corporation shall be deemed to have power to make such an appointment if-
(a) a person cannot be appointed as a director without the exercise in his favour by that other corporation of such a power;
or
(b) a person's appointment as a director follows necessarily from his being a director or other officer of that other corporation.
(3) In determining whether one corporation is subsidiary of another corporation-
(a) any shares held or power exercisable by that other corporation in a fiduciary capacity shall be treated as not held or exercisable by it;
(b) subject to paragraphs (c) and (d) of this subsection, any shares held or power exercisable-
(i) by any person as a nominee for that other corporation (except where that other corporation is concerned only in a fiduciary capacity): or
(ii) by, or by a nominee for, a subsidiary of that other corporation, not being a subsidiary which is concerned only in a fiduciary capacity;
shall be treated· as held or exercisable by that other corporation;
(c) any shares held or power exercisable by any person by virtue of the provisions of any debentures of the first-mentioned corporation or of a trust deed for securing any issue of such debentures shall be disregarded; and
(d) any shares held or power exercisable by, or by a nominee for, that other corporation or its subsidiary (not being held or exercisable as mentioned in paragraph (c) of this subsection) shall be treated as not held or exercisable by that other corporation if the ordinary business of that other corporation or its subsidiary, as the case may be, includes the lending of money and the shares are held or power is so exercisable by way of security only for the purposes of a transaction entered into in the ordinary course of that business.
(4) A reference in this Act to the holding company of a company or other corporation shall be read as a reference to a corporation of which that last-mentioned company or corporation is a subsidiary.
(5) Where a corporation-
(a) is the holding company of another corporation;
(b) is a subsidiary of another corporation;
(c) is a subsidiary of the holding company of another corporation,
that first-mentioned corporation and that other corporation shall for the purposes of this Act be deemed to be related to each other.
54 Clause 2(6)(b) of the 1978 consolidation also inserted a new provision. This subclause provided:
Service shall be deemed to be continuous notwithstanding-
…
(b) the employment with related companies as referred to in paragraph (4) of this subclause;
55 In reasons for decision for making these amendments in 1978, members of the Commission in Court Session did not address this extended deeming provision with a great deal of clarity. In the reasons for decision of Kelly SC, he referred to a claim made by the unions seeking 'portability' of service from one employer to another ((1978) 58 WAIG 116, 117). At (119) he made the following observations and findings:
[I]t is not readily apparent why it is unjust for the Commission to refuse to remove differences which have been created by the parties and developed over lengthy periods of time, when the only basis of the claim is in reality, that those differences exist.
The situation is otherwise, of course, if conditions are shown to be inherently unjust, and I now turn to those submissions of the unions which were directed to that aspect of the matter. I refer, in particular, to that part of the submissions which asserted that long service leave was, for most workers, an illusory benefit, and to the material put before the Commission in support of that assertion. To the extent that such a submission might refer to workers who do not qualify for long service leave because they voluntarily leave their employment before serving for the prescribed period it could, of course, carry no weight in a case which is predominantly concerned, not with a question of additional paid leisure in respect of employment generally, but with a particular period of leisure for long service with the same employer. However, to the extent that the submission refers to workers who, through no fault of their own, are deprived of the opportunity of qualifying for long service leave, I believe it shows up an injustice in the present conditions which should be remedied in one or more ways. In several States this injustice has been recognized in respect of some kinds of employment the very nature of which would render it almost impossible for the overwhelming majority of workers engaged therein to qualify for long service leave under the standard provisions. Those States which have recognized this injustice namely, New South Wales, Victoria, South Australia and Tasmania have done so by way of legislation and as it is clear in my view, that that is the only way in which appropriate machinery can be set up to cater for employment of that sort I believe that is the course of action which should be followed in this State.
But in addition to those workers whose employment is rendered intermittent by the nature of the industry in which they are employed, many workers are similarly disadvantaged in respect of long service leave by the closing down of the business in which they are employed, or by the introduction of labour saving equipment or by business amalgamations, or by other business decisions made by employers. The existing conditions recognize the principle that such employees are entitled to pro rata payment, but limit the entitlement to those employees who have completed 10 years' service. I find great difficulty in accepting that it is fair that an employee who has completed, say, 7, 8 or 9 years of service with an employer can have the whole of that service nullified for long service leave purposes by a decision over which he has no control and for which he is in no way responsible. Such a situation can, I think, only be accepted as fair if one takes the view first, that no worker should be entitled to any benefit by way of leave or payment in respect of long service leave unless he has completed a period of service with the one employer of such length that it may be described appropriately as 'long service' and secondly that any period of service less than 10 years cannot be appropriately so described. It is, perhaps, easier to take such a view of the matter now that the annual leave standard has become four weeks, and, with the exception of the South Australian legislation, that does seem to be the prevailing viewpoint not only in the Australian Commission but also in the legislation of the States. Noting, as I do, that in redundancy cases the Commission has not considered itself to be bound to the letter of the award provisions and being conscious of the recency of the decision of the Full Bench of the Australian Commission in which it varied the pro rata payment provision to extend that benefit to employees who terminate their employment for any reason after 10 years' service, I think we should not on this occasion depart from the prevailing Australian viewpoint on this matter.
In addition to the foregoing variation, the Full Bench also varied the Federal standard by substituting an employee's actual rate of pay for his award rate in the provisions relating to payment for long service leave and by adding provisions which treat service with associated companies as if it were service with the one company.
56 From this passage it can be seen that two material matters emerge:
(a) regard was had by the Commission in Court Session in its reasons for decision in 1978 to amendments to legislation in Victoria, Tasmania, New South Wales and South Australia remedying an injustice to employees who were unable to access long service leave through no fault of their own and the Commission in Court Session determined this injustice should be remedied through a variation to the LSL General Order; and
(b) variations were made to treat service with associated companies as if it were service with the one company.
57 In the 1978 consolidation, the Commission in Court Session essentially only made two variations which could be characterised to be of remedial character. The first was an amendment of cl 3(3) of the 1964 consolidation. Clause 3(3) of the 1964 consolidation provided ((1977) 57 WAIG 1, 3):
Subject to the provisions of paragraph (6) of this subclause, where a worker has completed at least ten years' service but less than fifteen years' service since its commencement and his employment is terminated—
(i) by his death; or
(ii) by the employer for any reason other than serious misconduct; or
(iii) by the worker on account of sickness of or injury to the worker or domestic or other pressing necessity where such sickness or injury or necessity is of such a nature as to justify or in the event of a dispute is, in the opinion of the Special Board of Reference, of such a nature as
the amount of the leave shall be such proportion of thirteen weeks' leave as the number of completed years of such service bears to fifteen years.
58 In 1978, the Commission in Court Session amended this clause by deleting cl 3(3)(iii). Consequently, the circumstances for payment of pro rata long service leave following termination of employment after at least 10 years' service but less than 15 years' service were made less restrictive in that the only grounds of disqualification of payment of long service leave was to be termination on grounds of serious misconduct.
59 The only other variation made in 1978 which could be said to provide access to long service leave to employees who were unable to access long service leave through no fault of their own are the provisions that provide for the deeming of service with related companies to be service of the employee by whom he or she is last employed and such service to be continuous service with one and the same employer within the meaning of cl 2(1) of the LSL General Order: cl 2(6)(b).
(b) The LSL Act
60 Section 8(1) of the LSL Act has substantially remained unamended since it was first enacted in 1958. The pre-condition for accrual of long service leave has remained the same, that is an employee is entitled to long service leave in accordance with the provisions of the LSL Act, in respect of continuous employment with one and the same employer, or a transmittee deemed to be one and the same employer.
61 When the LSL Act was first enacted, leaving aside exemptions which are not relevant to the determination of the issues raised in this appeal, an employer was defined in s 4(1) in the singular to mean unless the context requires otherwise, a person by whom an employee is employed.
62 In 1995, s 46(1)(f) of the Industrial Relations Legislation Amendment and Repeal Act amended the definition of 'employer' to the plural, to include persons, firms, companies and corporations.
63 This amendment was substantially the same insofar as it applied to employers in the private sector as the definition of employer in the Industrial Arbitration Act 1912 and also the definition of employer in s 7(1) of the IR Act, when the IR Act was first enacted in 1979 as the Industrial Arbitration Act 1979 (WA). The definition of employer in s 7(1) of the IR Act is also expressed to apply 'unless the contrary intention appears', and was subsequently amended to include employers of employees of labour hire agencies or group training organisations (s 185 of the Labour Relations Reform Act 2002 (WA)).
64 The explanatory notes to the Industrial Relations Legislation Amendment and Repeal Bill 1995 states the amendment to the definition of employer in the LSL Act was made to bring it into line with the definition of employer under the IR Act by using the same wording (cl 54, page 27).
65 Other amendments were made to the LSL Act in 1995 by the Industrial Relations Legislation Amendment and Repeal Act. These amendments included new entitlements by the insertion of a new s 5 which provided for limited contracting-out of long service leave and the insertion of a new s 9(1), s 9(1a) and s 9(1b). The amendments to s 9 enable an employee:
(a) with the agreement of the employer to take long service leave in separate periods of not less than one week;
(b) to give two weeks' notice of the period during which the employee intends to take leave.
66 The LSL General Order contained no equivalent to s 5 of the LSL Act as enacted in 1995. In addition, cl 5 of the LSL General Order could have been construed as less flexible to employees than the conditions for taking long service leave under s 9 of the LSL Act. Clause 5(1)(a), cl 5(1)(b) and cl 5(1)(c) of the 1978 consolidation of the LSL General Order provided:
In a case to which placita (a) and (b) of paragraph (2) of subclause (3) apply:—
(a) Leave shall be granted and taken as soon as reasonably practicable after the right thereto accrues due or at such time or times as may be agreed between the employer and the worker or in the absence of such agreement at such time or times as may be determined by the Special Board of Reference having regard to the needs of the employer's establishment and the workers' circumstances.
(b) Except where the time for taking leave is agreed to by the employer and the worker or determined by the Special Board of Reference the employer shall give to a worker at least one month's notice of the date from which his leave is to be taken.
(c) Leave may be granted and taken in one continuous period or if the employer and the worker so agree in not more than three separate periods in respect of the first thirteen weeks' entitlement and in not more than two separate periods in respect of any subsequent period of entitlement.
67 Thus, employees covered by the LSL General Order prior to 2006 could only take 13 weeks' long service leave as a block of three separate periods, whereas employees covered by the LSL Act could take long service leave in blocks of a week at a time. Further, an employee covered by the LSL General Order had to give one month's notice to take long service leave, whereas an employee whose entitlement to long service leave arose under the LSL Act only had to give two weeks' notice.
68 When regard is had to this legislative history, prior to the 2006 amendments, it is apparent that the terms of the LSL General Order could be regarded in some respects less beneficial to an employee than the conditions that attached to the taking of long service leave under the LSL Act.
69 In 2006, substantial amendments were made to the LSL Act by the enactment of div 2 of pt 7 of the Labour Relations Legislation Amendment Act. Whilst s 64 of that Act repealed the LSL General Order, the amendments made to the LSL Act did not replicate the provisions of the LSL General Order. To the contrary, leaving aside the issue whether an entitlement to long service leave in s 8(1) of the LSL Act in respect of 'continuous employment with one and the same employer' could be said to extend to continuous employment with related employers, some amendments were made to the LSL Act that were more beneficial than entitlements to long service leave pursuant to the terms of the LSL General Order. Other provisions enacted changes to the LSL Act that were different to provisions of the LSL General Order. In addition, some amendments effected changes to entitlements that were more beneficial than entitlements that accrued under either instrument. For example:
(a) Section 55(1) of the Labour Relations Legislation Amendment Act amended the definition of 'ordinary pay' in s 4(1). This amendment removed commissions and bonuses from the list of exclusions from ordinary pay. Section 55(2) also amended s 4(2)(b) the effect of which was consistent with the definition of 'pay' in the LSL General Order. However, the amendment provided for a definition that defined 'pay' in a way that results in a different method of calculation for piece or bonus work from the LSL General Order provision and the existing terms of the LSL Act. This amendment once enacted provides:
For the purpose of the interpretation of 'ordinary pay' in subsection (1) —
…
(b) where the employee is employed on piece or bonus work or any other system of payment by results, the employee's rate of pay during any period when the employee is on long service leave is the average weekly rate earned by him while in employment during the period of 12 months —
(i) ending on the day immediately preceding that on which he commences long service leave or would but for payment in lieu of long service leave have commenced long service leave, if he is then in employment; or
(ii) ending on the day immediately preceding that on which he was last in employment, if he is not then in employment; or
(iii) ending on the day immediately preceding that of his death,
as the case requires; and
This difference emerges clearly from the express terms of cl 4(5) of the LSL General Order which had provided:
In the case of workers employed on piece or bonus work or any other system of payment by results the rate of pay shall be calculated by averaging the worker's rate of pay for each week over the previous three monthly period.
Under the amendment to the LSL Act pay for piece or bonus work is to be averaged over a 12month period, whereas under the LSL General Order pay for piece or bonus work was to be averaged over a threemonth period.
(b) One amendment made to the LSL Act in 2006 which created a more beneficial entitlement than the existing terms of the LSL Act and the LSL General Order was an amendment to s 8(3) of the LSL Act. Prior to the amendment, an entitlement to long service leave or payments in lieu under the LSL Act and the LSL General Order did not accrue in specific circumstances until at least 10 years of continuous service. Pursuant to s 56(2) of the Labour Relations Legislation Amendment Act this qualifying period was reduced to seven years.
(c) Another amendment made to the LSL Act in 2006 that was more beneficial than the existing terms of the LSL Act and the LSL General Order was an amendment to s 9(4) of the LSL Act. Prior to the amendment, long service leave taken during a period that any public holidays occurred were deemed to be inclusive of long service leave under the LSL Act and the LSL General Order. Section 58(2) of the Labour Relations Legislation Amendment Act amended s 9(4) of the LSL Act to provide that where a public holiday occurs during a period of long service leave the period of long service leave is increased by one day for each public holiday.
Explanatory memorandum to the 2006 amendments to the LSL Act
70 When the text of the amendments made to the LSL Act by the Labour Relations Legislation Amendment Act set out in [69] and [83] of these reasons are considered, it can be seen that the mischief the learned Industrial Magistrate found in the enactment of the 2006 amendments is not correct.
71 The learned Industrial Magistrate found that the stated intention of the repeal of the LSL General Order (when regard was had to statements made in the explanatory memorandum) was to consolidate and incorporate all long service leave entitlements under the LSL Act, without any loss of entitlements to employees. He also found that the terms of the LSL General Order were incorporated into the LSL Act. In my respectful opinion, these findings are in error.
72 As the statutory text is paramount, the statements made in the explanatory memorandum to the 2006 amendments must be read with regard to specific provisions of the text it seeks to explain. When this task is undertaken it can be seen that the 2006 amendments did not have the effect to 'consolidate and incorporate all long service leave entitlements under the LSL Act without loss of entitlements'.
73 When regard is had to the fact that the entitlements under the LSL Act as amended in 2006 were different in some material respects, such as shortened periods to accrue an entitlement and the fact that 'ordinary pay' was to be calculated differently to that provided in the LSL General Order in some respects it could not be said that all long service leave entitlements under the LSL General Order were incorporated by the 2006 amendments.
74 In making the finding that the 2006 amendments incorporated and consolidated the long service leave entitlements under the LSL Act without loss of entitlements, the learned Industrial Magistrate relied upon statements made in the explanatory memorandum that were either quoted out of context or wrongly stated the effect of amendments.
75 In [62] of his reasons for decision the learned Industrial Magistrate stated:
In the Explanatory Memorandum to its repealing legislation it was said, at c1 247:
It is important that, with the abolition of the LSL General Order, employees are not disadvantaged if their LSL entitlement becomes governed by the LSL Act rather than the LSL General Order.
76 This sentence in the explanatory memorandum was quoted out of context. This statement was made in relation to the removal of commission and bonuses from the list of matters to be excluded from the calculation of ordinary pay. Clause 247 and cl 248 of the explanatory memorandum explained the amendments made to the definition of 'ordinary pay' in s 4(2)(b) of the LSL Act. Clause 247 stated:
Section 55(1)(c) of the Bill will remove commissions and bonuses from the list of exclusions from ordinary pay. It is important that, with the abolition of the LSL General Order, employees are not disadvantaged if their LSL entitlement becomes governed by the LSL Act rather than the LSL General Order. The LSL General Order does not exclude commissions or bonuses from its definition of ordinary pay. Retaining this exclusion in the LSL Act would disadvantage employees who are paid regular commissions or bonuses as part of their wages.
77 Clause 248 stated:
Section 55(2) of the Bill is also concerned with increasing parity between the LSL Act and the LSL General Order. The LSL Act will be amended to provide that employees who are paid on piece work, bonus work, or any other system of payment by results receive payment for long service leave based on the employee's average rate over the past year. Previously employers could pay employees the rate of pay that would have been applicable to the employee if they were employed on a time basis. This system is inconsistent with the LSL General Order and penalises employees whose productivity is sufficient to award them greater pay on a piece rate than they would earn on an hourly rate.
78 Section 64 and s 65 of the Labour Relations Legislation Amendment Act repealed the LSL General Order and deemed a person's long service leave rights, entitlements and obligations to arise, after commencement of the 2006 amendments, under the LSL Act. Section 64 provided:
The LSL General Order is repealed.
79 Section 65 provided:
(1) The object of this section is to ensure that where, before commencement, a person's long service leave rights, entitlements or obligations arose under an industrial instrument by reference to the LSL General Order that person's long service leave rights, entitlements or obligations arise, after commencement, under the instrument by reference to the Long Service Leave Act 1958.
(2) Unless the contrary intention appears or the context otherwise requires, a reference in an industrial instrument to the LSL General Order, or a provision of that Order, is, after commencement, to be read as a reference to the Long Service Leave Act 1958, or the corresponding provision of that Act, (whichever is relevant) and the instrument is to be construed so as to give effect to the object of this section.
(3) Subsection (2) applies to references that, after commencement, have ongoing effect.
(4) A provision of the Long Service Leave Act 1958 corresponds to a provision of the LSL General Order if the provisions deal with substantially the same matter.
(5) In this section —
'commencement' means the coming into operation of the Labour Relations Legislation Amendment Act 2006 Part 7 Division 2.
80 In [63] of his Honour's reasons for decision, the learned Industrial Magistrate set out in full cl 271 of the explanatory memorandum to s 64 of the Labour Relations Legislation Amendment Act (which explained the reasons for the repeal of the LSL General Order). Clause 271 stated:
The LSL Act and the LSL General Order do not differ substantially in the entitlements that they offer. However, the minor differences can be confusing for employers and employees alike. This duplication of LSL instruments is unnecessary and cumbersome. An independent review of Western Australian industrial relations legislation recommended that the LSL Act and the LSL General Order be consolidated to remedy this duplication of instruments (Commissioner G.L. Fielding, Review of Western Australian Labour Relations Legislation, July 1995).
81 Of importance is an acknowledgement in cl 271 that prior to the enactment of the 2006 amendments the entitlements offered under the LSL Act and the LSL General Order were not the same. Leaving aside for the moment whether proper construction of the words in s 8(1) of the LSL Act 'one and the same employer' did not encompass service by related companies, this statement does not state that it was intended to consolidate the LSL General Order into the LSL Act, only that such a recommendation had been made by Fielding C in the review he conducted of labour relations legislation in 1995.
82 In [65] of his reasons for decision the learned Industrial Magistrate found:
The fact that Parliament did not amend the LSL Act to expressly incorporate order 4 of the General Order is attributable to the term one and the same employer including related companies. Otherwise, the effect of the amendment would have left some employees worse off. Such an outcome is inconsistent with Parliament's intention, reflected in the second reading of the Labour Relations Legislation Amendment Bill 2006, where on 24 May 2006 it was stated:
The bill will amend the Long Service Leave Act 1958 and the Construction Industry Portable Long Service Leave Act 1985 to improve long service leave entitlements. Private sector long service leave entitlements in Western Australia lag behind those in all other states and territories.
83 With respect in my opinion, this quote was considered out of context. On 30 March 2006, the Minister for Employment Protection stated in the second reading speech when introducing the Labour Relations Legislation Amendment Bill 2006:
The bill will amend the Long Service Leave Act 1958 and the Construction Industry Portable Paid Long Service Leave Act 1985 to improve long service leave entitlements. Private sector long service leave entitlements in Western Australia lag behind those in all the other states and territories. Western Australia has enjoyed unprecedented economic growth in recent times, growth that should be rightly shared by those who contributed to it - not the least of whom are long-serving employees and their families. The point at which an employee becomes entitled to long service leave could be the difference between retaining and losing a valued worker. It could be a powerful selling point when recruiting a new employee, particularly from the eastern states or overseas. The benefit of these amendments to employers should not be underestimated. Employees will be entitled to eight and two-thirds weeks' long service leave after 10 years' service. A pro rata entitlement will accrue after seven years' service. Transitional arrangements will ensure that employees do not become immediately entitled to take long service leave upon 10 years' service. This will give employers sufficient time to comply with the changes. The commission's long service leave general order will be abolished. The Long Service Leave Act will replace the general order as the primary instrument governing long service leave in the Western Australian private sector. There will be minor adjustments to the Long Service Leave Act as a result of the general order being abolished.
84 When the Minister made the statement that the long service leave entitlements were to be improved as they lagged behind entitlements in the Eastern States, it appears that the Minister was speaking about the improvements to the entitlements to long service leave by enacting the amendments to s 8(2), s 8(3), s 8(4), s 8(5), s 8(6), s 8(7), s 8(8) and s 8(9) of the LSL Act. The Minister made no reference to service by employees with related bodies corporate being deemed continuous service. The effect of the amendments the Minister was speaking of was explained in cl 250 to cl 259 of the explanatory memorandum as follows:
Section 56(1) of the Bill will amend section 8(2) of the LSL Act to provide 8⅔ weeks of LSL after 10 years of continuous service rather than the current entitlement of 13 weeks after 15 years.
Section 8(2)(b) of the LSL Act will also be amended by section 56 of the Bill to provide 4⅓ weeks of LSL after completing a further 5 years of service with the same employer (after the 10 years referred to above). Previously, 8⅔ weeks of LSL were provided after a further 10 years of service.
Section 56(2) of the Bill will amend section 8(3) of the LSL Act to provide pro rata LSL payment on termination of employment after 7 years of service rather than the current 10 years.
Section 56(3) of the Bill will repeal and replace the current transitional provisions in sections 8(4), 8(5), and 8(6) of the LSL Act. The new provisions are designed to ensure that entitlements that have been accrued prior to the commencement of the Amendment Act are preserved. The provisions will also prevent the undesirable situation in which all employees who have completed between 10 and 15 years' service are entitled to proceed on long service leave as soon as the Amendment Act commences.
New section 8(4) details when employees who were employed prior to the commencement of the Amendment Act are able to take LSL. Employees with less than 6 years' continuous service will be able to proceed on LSL after completing 10 years' continuous service.
Section 8(5) clarifies that the transitional provisions do not apply any period of employment in respect of which the employee was entitled to take LSL prior to the commencement day.
Section 8(6) clarifies that employees to whom the transitional provisions apply, may take all the LSL that they have accrued (based on an accrual rate of 0.8667 weeks of LSL per year of service) at the time they are entitled to proceed on LSL in accordance with section 8(4). This allows employees who, under the transitional provisions, have been required to complete more than 10 years' service to take more than 8⅔ weeks of LSL.
Section 8(7) clarifies that employees to whom the transitional provisions do not apply (those who complete 15 years' service before the commencement day) are unable to take advantage of section 8(6).
Section 8(8) allows employees who have taken more than 8⅔ weeks of LSL under section 8(6) to take further leave (to make up 13 weeks of leave) once they have completed 15 years of service.
Section 8(9) clarifies that the term 'commencement day' means the day on which Part 7 Division 2 comes into operation. Part 7 Division 2 of the Bill will come into effect in accordance with section 2(1) of the Bill.
85 Thus, when the text of the 2006 amendments is considered, it is clear that the terms of the LSL General Order were not preserved by the transitional provisions. Once the 2006 amendments came into force the rights and entitlements to long service leave of persons to whom the LSL General Order applied were to be calculated as if those rights and entitlements arose under the LSL Act.
86 Consequently, the statements in cl 253 and cl 272 of the explanatory memorandum that the transitional provisions in s 65 of the Bill (s 65 of the Labour Relations Legislation Amendment Act) 'are designed to ensure that entitlements that have been accrued prior to the commencement of the Amendment Act are preserved' and 'the LSL Act will apply to people in the same manner as the LSL General Order' are not correct statements of the effect of s 65 as the entitlements to long service leave under the amended LSL Act are different to the entitlements to long service leave under the LSL General Order. Thus, these statements cannot be relied upon as an aid to interpretation of the text of 2006 amendments.
Proper construction of words 'one and the same employer'
87 I do not agree that the words 'one and the same employer' are ambiguous. Nor am I of the opinion that the word 'employer' in s 8(1) of the LSL Act should be construed as plural.
88 The 2006 amendments made no amendment to the LSL Act which could be properly construed as an enactment to extend the meaning of 'employer' in s 8(1) of the LSL Act to include related bodies corporate. This becomes clear when regard is had to the specific amendments that were made to the LSL Act by the enactment of the 2006 amendments. Other than revealing a 'gap' in the 2006 amendments by failing to preserve the entitlement to long service leave by persons whose employment was covered by the LSL General Order who had been employed by related bodies corporate prior to the enactment of the 2006 amendments, I am not satisfied the text of the 2006 amendments, nor the explanatory memorandum to the 2006 amendments, sheds any light on the fixing of the meaning of the words 'one and the same employer' in s 8(1) of the LSL Act.
89 The explanation of the amendment of the definition of 'employer' in the explanatory memorandum to s 46(1)(f) of the Industrial Relations Legislation Amendment and Repeal Act is also of no assistance in fixing the meaning of the use of the word 'employer' in s 8(1) of the LSL Act. In my opinion, the word 'employer' must be construed in the textual context of all of the words used in s 8(1) and the LSL Act as a whole as follows:
(a) Section 8(1) commences with the words 'An employee is entitled in accordance with, and subject to, the provisions of this Act, to long service leave'. Leaving aside the conditions which attach to accrual of long service leave, when one examines the provisions that provide for the conditions of taking long service leave it can be seen that arrangements are to be made with a singular employer and obligations to allow an employee to take long service leave is cast upon a single employer (see, for example, s 9, s 10 and s 11 of the LSL Act).
(b) The words in s 8(1) creating an entitlement to long service leave are circumscribed by the following conditions:
(i) the leave arises out of continuous employment;
(ii) the continuous employment is to be 'with one and the same employer'.
(c) The concept of 'continuous employment' connotes employment without a break in service. Specified events that could be considered a break in the continuity of employment are expressly deemed to be continuous (s 6 of the LSL Act). One of those circumstances is the transmission of business (s 6(2) and s 6(4) of the LSL Act). The only express exception to employment with another employer in s 8(1) that is deemed to be employment with one and the same employer is employment with an employer who is a transmittee.
90 When regard is had to all of these textual indications in the LSL Act it is plain that the words continuous employment with 'one and the same employer' means continuous employment with a single employer. As the appellant points out in its supplementary submissions, this meaning is consistent with the definition of the phrase 'one and the same' in The New Shorter Oxford English Dictionary on Historical Principles (4th ed, 1993) which is 'one and the same, (arch.) the selfsame the same, the identical'. As the appellant points out the words 'one and the same' are words of limitation; that is, those words limit the meaning of the word 'employer' to the singular.
91 Consequently, there is no room to read the words qualifying continuous employment in s 8(1) of the LSL Act with 'one and the same employer' when the employer is a company, as encompassing and including any related bodies corporate.
Was there a 'gap' in the 2006 amendments?
92 The intention in enacting the 2006 amendments must be found in the amending text, construed in light of its context and purpose. The text of s 65 of the Labour Relations Legislation Amendment Act reveals that it was intended that for each provision in the LSL General Order there would be a corresponding provision of the LSL Act, as:
(a) section 65(1) requires that after commencement of the 2006 amendments that rights, entitlements and obligations that had arisen under an industrial instrument (by the LSL General Order) before commencement, arise under the LSL Act; and
(b) section 65(2) requires that after commencement of the 2006 amendments a provision in the LSL General Order is to be read as corresponding provision of the LSL Act; and
(c) section 65(4) provides a corresponding provision as a provision that deals substantially with the same matter.
93 This intention is reflected in and confirmed in cl 271 of the explanatory memorandum of the 2006 amendments which stated that the LSL Act and the LSL General Order do not differ substantially in the entitlements that they offer. Insofar as this statement relates to employees who prior to the commencement of the 2006 amendments had been employed by a company and had for a period of time prior to the commencement been continuously employed by a related body corporate it cannot be said that the difference in entitlements in the LSL Act and the LSL General Order did not differ substantially.
94 Further, it was, as the learned Industrial Magistrate correctly found, Parliament's stated intention in making consequential amendments to the LSL Act to prevent disadvantage to those employees previously covered by the LSL General Order (cl 218(e) of the explanatory memorandum to the 2006 amendments). When regard is had to all of the improvements made to the entitlements to long service leave by the 2006 amendments and to the history of the coverage of the LSL General Order, it appears that in 2006 Parliament overlooked the fact that there was no provision in the LSL Act that provided for employment with a related body corporate to be deemed as continuous employment with the employer to whom it was related. Consequently, as the 2006 amendments did not enact any amendment which dealt with this matter there was and there is no provision in the LSL Act which can be characterised as a provision which deals with this matter. In other words, there is no corresponding provision.
95 There are three pre-conditions that must be satisfied before words can be read into legislation to give effect to its purpose or object to avoid an irrational, absurd or capricious result. The conditions were identified by Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74; and reformulated in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586, 592; [2000] 2 All ER 109, 115 (Lord Nicholls of Birkenhead); applied by the High Court in Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 [22] - [24] (French CJ, Crennan and Bell JJ). These are the court must:
(a) be able to identify the precise purpose of the provision (that is the mischief that Parliament intended to deal with);
(b) be satisfied that by inadvertence Parliament has overlooked an eventuality that must be dealt with if the provision is to achieve its purpose; and
(c) identify the words that the legislature would have included in the provision had the deficiency been detected before its enactment. In particular, the court must be abundantly sure of the words Parliament would have used: The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [No 2] [2014] WASC 345 [144] (Edelman J).
96 To these three conditions, the High Court in Taylor approved a fourth condition. That is, the modification must be consistent with the wording otherwise adopted by the draftsman [25] - [26].
97 In The Commissioner for Corrective Services v RAJ [2014] WASC 338 (approved by Edelman J in Brockman Iron Pty Ltd [No 2] [145]) Beech J explained these conditions are guidelines. At [43] - [46] Beech J in RAJ said:
Satisfaction of these three conditions is not, in itself, sufficient to sustain reading additional words into a provision. The task remains one of construction of the words the legislature has enacted. Any modified meaning must be consistent with the language in fact used by the legislature (Taylor [39]). If the legislature 'uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured or unrealistic manner to cover another set of circumstances' (Newcastle City Council (113); Taylor [39]).
Even when Lord Diplock's three conditions are met, 'the court may be inhibited from interpreting a provision in accordance with what it is satisfied with the underlying intention of Parliament: the alteration of the language of the provision may be too far-reaching' (Taylor [40]).
This suggests that, in the end, the three conditions may be in the nature of guidelines to be considered in the process of statutory construction in accordance with conventional construction techniques, giving appropriate weight to text, context, object and consequences.
Statutory texts enacted by the same legislature are to be construed so far as possible to operate in harmony and not in conflict (Commissioner of Police v Eaton [2013] HCA 2 [98]).
98 That whether words should be read into legislation involves a judgment of matters of degree was made clear by French CJ, Crennan and Bell JJ in Taylor when their Honours stated [38]:
The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision (Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630 per Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ; Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 at 651-652 [9] per French CJ and Bell J). It is answered against a construction that fills 'gaps disclosed in legislation' (Marshall v Watson (1972) 124 CLR 640 at 649 per Stephen J) or makes an insertion which is 'too big, or too much at variance with the language in fact used by the legislature' (Western Bank Ltd v Schindler [1977] Ch 1 at 18 per Scarman LJ, cited by Lord Nicholls of Birkenhead in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 at 592; [2000] 2 All ER 109 at 115).
99 Their Honours also said in Taylor [40]:
Lord Diplock's speech in Wentworth Securities laid emphasis on the task as construction and not judicial legislation (Wentworth Securities Ltd v Jones [1980] AC 74 at 105-106). In Inco Europe Lord Nicholls of Birkenhead observed that even when Lord Diplock's conditions are met, the court may be inhibited from interpreting a provision in accordance with what it is satisfied was the underlying intention of Parliament: the alteration to the language of the provision in such a case may be 'too far-reaching' (Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 at 592; [2000] 2 All ER 109 at 115). In Australian law the inhibition on the adoption of a purposive construction that departs too far from the statutory text has an added dimension because too great a departure may violate the separation of powers in the Constitution (Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 512-513 [102] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; Zheng v Cai (2009) 239 CLR 446 at 455-456 [28] per French CJ, Gummow, Crennan, Kiefel and Bell JJ).
100 For example, where a provision that requires something to be done but no time to do so is specified, the words 'within a reasonable time' could be read in: Pearce DC and Geddes RS, Statutory Interpretation in Australia (8th ed, 2014) [2.32] and cases cited therein.
101 In this matter, whilst the first two conditions identified by Lord Diplock can be said to be satisfied, I am not satisfied the third condition can be met as whilst it is not necessary to be aware of the exact words that would be used, I am not satisfied there is sufficient certainty of the words or the extent of creation of a deeming provision Parliament would have used to fill the gap. Further, even if the third condition could be said to have been met or can be disregarded as a mere guideline, the words used by the learned Industrial Magistrate to fill the gap are too far-reaching. The effect of the learned Industrial Magistrate's decision was to add the words that employment with related bodies corporate as defined in s 50 of the Corporations Act is to be deemed continuous employment within the meaning of employment with one and the same employer in s 8(1) of the LSL Act.
102 Clause 2(4) and cl 2(6)(b) of the LSL General Order (set out in full in [53] - [54] of these reasons) were far more comprehensive in their terms. The terms of s 6 of the Companies Act set out in cl 2(4) of the LSL General Order not only referred to the State Companies Act (now repealed) it defined subsidiary of another corporation a holding company and specified the circumstances constituting the control by another corporation.
103 Whilst the text of s 65 of the Labour Relations Legislation Amendment Act makes it clear that corresponding provisions in the LSL Act were not to be identical but merely to deal substantially with the same manner, with respect it is difficult to contemplate the specific language a draftsperson would have used to deem employment with related bodies corporate, employment with the same employer.
104 Section 50 of the Corporations Act provides:
Where a body corporate is:
(a) a holding company of another body corporate; or
(b) a subsidiary of another body corporate; or
(c) a subsidiary of a holding company of another body corporate;
the first-mentioned body and the other body are related to each other.
105 The provision is substantially the same as s 6(5) of the repealed Companies Act. However, by reading in the reference to s 50 of the Corporations Act, the learned Industrial Magistrate does not make clear whether the following provisions in the Corporations Act would apply when determining whether a corporate body is related to another:
(a) the definition of holding company in s 9 of the Corporations Act;
(b) section 46 of the Corporations Act;
(c) what circumstances will constitute 'control' of another body corporate within the meaning of s 46 of the Corporations Act (s 47 of the Corporations Act); and
(d) matters to be disregarded when determining whether a body corporate is a subsidiary of another body corporate (s 48 of the Corporations Act).
106 Whether a draftsperson would include references to these provisions is not clear. A draftsperson may do so or they may wish to simply refer to a related body corporate of a corporation as defined in the Corporations Act.
107 By implying the words the learned Industrial Magistrate did would have the effect of making an extensive and unacceptable amendment to the LSL Act. Such an amendment in my opinion is not permissible. Leaving aside the effect on employees whose employment was covered by the LSL General Order prior to the 2006 amendments, to do so would be a far-reaching change which would create new rights and obligations which in my opinion would usurp the role of Parliament.
108 As counsel for the appellant pointed out in his oral submissions at the hearing of the appeal, the learned Industrial Magistrate's construction ultimately ends too far away from the text to be said to be a construction which has begun and ended with the text (ts appeal 17).
Does the LSL Act exclude the doctrine of piercing the corporate veil?
109 At the hearing of the appeal on 7 June 2016, the Full Bench put the question whether the LSL Act leaves open a factual analysis of whether by application of the doctrine of piercing the corporate veil there is no separate legal entity between related bodies corporate.
110 The appellant in its supplementary submissions poses the question whether s 8(1) of the LSL Act require the lifting or piercing of the corporate veil when determining who is the employer of an employee.
111 With respect to the comprehensive and thoughtful submissions set out in the supplementary submissions of the appellant, the determination of this issue requires analysis in a different way. Legislation is presumed not to alter common law doctrines unless the presumption is displaced by implication: Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, 437; applying Bropho v Western Australia (1990) 171 CLR 1, 18, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ.
112 As the appellant properly points out at law a company is a separate legal entity separate from the legal persons who become associated for its formation or who are its members: Austin RP and Ramsay IM, Ford's 'Principles of Corporations Law (15th ed, 2013) [4.140]. A parent company is also a separate legal entity from its subsidiaries: Industrial Equity Ltd v Blackburn [1977] HCA 59; (1977) 137 CLR 567.
113 However, it is open for courts in particular circumstances to look behind the corporate veil and find that in fact the actions of one company is in fact the actions of another by application of the common law doctrine of piercing or lifting the corporate veil.
114 Justice Young in Pioneer Concrete Services Ltd v Yelnah Pty Ltd (1986) 5 NSWLR 254, 264 explained that lifting the corporate veil as:
[W]henever each individual company is formed a separate legal personality is created courts will on occasions look behind the legal personality to the real controllers. As John H Farrar says in his Company Law, Butterworths London (1985) at 57:
'… It is difficult to rationalise the cases except under the broad, rather question-begging heading of policy and by describing the main legal categories under which they fall. These are (1) agency; (2) fraud; (3) group enterprises; (4) trusts; (5) enemy; (6) tax; (7) the Companies Act itself.'
115 In DHN Food Distributors Ltd v London Borough of Tower Hamlets [1976] 3 All ER 462, Lord Denning MR set out the grounds for lifting the corporate veil. At (467) he said:
A further very interesting point was raised by counsel for the claimants on company law. We all know that in many respects a group of companies are treated together for the purpose of general accounts, balance sheet and profit and loss account. They are treated as one concern. Professor Gower in his book on company law (Principles of Modern Company Law (3rd Edn, 1969), p 216) says: 'there is evidence of a general tendency to ignore the separate legal entities of various companies within a group, and to look instead at the economic entity of the whole group'. This is especially the case when a parent company owns all the shares of the subsidiaries, so much so that it can control every movement of the subsidiaries. These subsidiaries are bound hand and foot to the parent company and must do just what the parent company says. A striking instance is the decision of the House of Lords in Harold Holdworth & Co (Wakefield) Ltd v Caddies ([1955] 1 All ER 725; [1955] 1 All ER 352). So here. This group is virtually the same as a partnership in which all the three companies are partners. They should not be treated separately so as to be defeated on a technical point. They should not be deprived of the compensation which should justly be payable for disturbance. The three companies should, for present purposes, be treated as one, and the parent company, DHN, should be treated as that one. So that DHN are entitled to claim compensation accordingly.
116 In Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267; Jenkinson J (Woodward and Foster JJ agreeing) set out this passage of Lord Denning MR in DHN Food Distributors Ltd and then went on to observe at (272):
In Pioneer Concrete Services Ltd v Yelnah Pty Ltd (1986) 11 ACLR 108 a submission was advanced that a contractual promise by a subsidiary company should be treated, for the purposes of a claim by the promisee that there had been breach of that contractual term, as a promise also by the parent company. One ground of submission was the reasoning of Lord Denning MR in the DHN case, supra, which I have quoted. Young J observed that the separate legal personality of a company is to be disregarded only if the court can see that there is, in fact or in law, a partnership between companies in a group, or that there is a mere sham or facade in which that company is playing a role, or that the creation or use of the company was designed to enable a legal or fiduciary obligation to be evaded or a fraud to be perpetrated: 11 ACLR at 119-20.
117 Perhaps of particular relevance in this matter, courts have lifted or pierced the corporate veil in circumstances where a subsidiary has been found to be a mere manifestation of the parent company or an agent of the parent company where the parent company has such a degree of control over its subsidiary, the acts of the subsidiary have been found to be acts of the parent company: Smith, Stone & Knight Ltd v Birmingham Corporation [1939] 4 All ER 116; DHN Food Distributors Ltd; Burswood Catering & Entertainment Pty Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch [2002] WASCA 354; (2002) 83 WAIG 201. Consequently, an employee could be found to be an employee of a former employer on grounds that when a contract of employment was entered into by a second company the second company did so as an agent of a former employer: see Damevski v Guidice [2003] FCAFC 252; (2003) 133 FCR 438; (2003) 129 IR 53. Whether such a relationship of agency can be found to exist turns upon the facts of each particular case.
118 In any event, the fact that a parent company exercises control over its subsidiary does not of itself justify treating acts of the subsidiary as being those of the parent company: Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440, 451 (Steytler J). There may be a good commercial purpose for having a separate subsidiary performing different functions even if it is controlled by the parent company: Yelnah Pty Ltd (267) (Young J), Heytesbury Holdings Pty Ltd (451) (Steytler J); ACN 007 528 207 Pty Ltd (in liq) v Bird Cameron [2005] SASC 204; (2005) 91 SASR 570.
119 In this matter, there is nothing in the text of the LSL Act construed within its context and purpose upon which it could be found an intention to override the common law doctrine which in an appropriate case on the facts could allow the learned Industrial Magistrate to lift or pierce the corporate veil and find that a corporate body is in fact the employer of an employee, despite the fact that another company claims to be the employer of the employee.
120 The agreed facts before the learned Industrial Magistrate are insufficient for any determination of whether it would be appropriate to embark upon a hearing to consider on the facts whether the veil between the appellant and its related body corporate, Baker Hughes Incorporated, or any other related body corporate, be lifted or pierced. If this is not a matter that the respondent says could be raised on the facts it alleges, it would necessarily follow that the application before the learned Industrial Magistrate in M 117 of 2015 be dismissed.
Conclusion - Grounds of appeal
121 For these reasons, I am of the opinion that the following grounds of appeal have been made out:
(a) ground 1;
(b) ground 2(a);
(c) ground 3, insofar as the learned Industrial Magistrate found that the meaning of the expression 'one and the same employer' is obscure, but not otherwise;
(d) ground 4(b), insofar as the learned Industrial Magistrate took into account statements in the extrinsic material that did not correctly state the law;
(e) ground 5; and
(f) ground 6.
122 Consequently, I am of the opinion that orders should be made to:
(a) uphold the appeal; and
(b) remit the matter to the learned Industrial Magistrate for further hearing and determination according to law.
SCOTT CC:
123 I have had the benefit of reading the draft reasons for decision of the Acting President. I agree and have nothing to add.
MATTHEWS C:
124 The learned Magistrate was asked by the parties to answer the following question as a 'preliminary' question in the matter before him:
Is the [respondent's] prior employment with related bodies corporate (as that term is defined in section 50 of the Corporations Act 2001 (Cth)) of the [appellant], and his subsequent employment with the [appellant], 'continuous employment with one and the same employer' for the purposes of calculating long service leave entitlements under section 8(1) of the Long Service Leave Act 1958 (WA)?
125 In my respectful view his Honour should have declined the request.
126 In my respectful view his Honour should have heard all of the evidence and then decided whether the claimant's various employers were, in fact, 'one and the same employer' as that term is used in s 8(1).
127 It may have appeared to make sense to ask, and answer, the question as a preliminary question against the following background.
128 The claimant had stated, at [5] of the document attached to his Originating Claim and described as a 'Statement of Claim' (appearing at (7) of the Appeal Book) that:
At all material times the claimant was employed by Baker Hughes Incorporated (Baker Hughes) or its related body corporates (as that term is defined in s.50 of the Corporations Act 2001 (Cth)), including but not limited to Baker Hughes Australia Pty Ltd (ABN 20 004 752 050) (BH Australia).
129 The respondent had stated, at [5] of the document attached to its Response and described as 'Defence of the Respondent' ((18) of the Appeal Book) that:
The Respondent admits the allegation made in paragraph 5 of the SofC.
130 Of course, those pleadings do not tell us much about the facts. The actual entities which employed the claimant are not pleaded. Nor are the relationships of those entities to each other, of the several different kinds referred to in s 50 of the Corporations Act, pleaded.
131 Nonetheless, it may have been the case that it was thought an answer to the preliminary question might be determinative of the claim or at least highly relevant to its determination.
132 With respect, I do not see the matter in that way.
133 Section 8(1) of the Long Service Leave Act provides that long service leave is payable in relation to continuous employment 'with one and the same employer'.
134 The obvious start point is that s 8(1) requires a court faced with a situation where a claimant has had several employers but the claimant says they were, as a matter of fact, 'one and the same employer' to determine whether, as a matter of fact, this is or is not the case.
135 The question raised by this appeal is whether that factual enquiry is answered if it is admitted that there was more than one employer but those employers were 'related' in one of the ways described in s 50 of the Corporations Act.
136 In my respectful view the factual enquiry required by s 8(1) cannot be avoided or assisted by deciding, as the preliminary question asked of his Honour, whether or not the corporate relationships described in s 50 of the Corporations Act are, in the abstract, descriptions of circumstances in which multiple entities are 'one and the same'.
137 In my respectful view the factual enquiry required by s 8(1) must be undertaken once the evidence is known and, in this case, there was not sufficient 'known' as a result of the pleadings to complete the enquiry.
138 The competing arguments, both before his Honour and the Full Bench, made the answering of the question superficially attractive.
139 Mr Sharpe for the appellant says that if the construction for which the appellant contends, that s 8(1) of the Long Service Leave Act cannot apply to multiple entities, then the respondent's claim must fail.
140 Mr Cox for the respondent says that if the construction for which the respondent contends, that s 8(1) can apply to employment with multiple entities where those entities are 'related' as per s 50 of the Corporations Act, then the respondent clears a significant hurdle.
141 When put in these terms answering the question seems to be a useful exercise.
142 However, when examined more closely, Mr Sharpe asks us to answer a question not raised by the preliminary question. To say that s 8(1) of the Long Service Leave Act does not allow consideration of employment by multiple entities is a much broader proposition than that employment by multiple entities having one of the relationships described in s 50 of the Corporations Act is not within s 8(1).
143 For instance, a claimant may wish to argue that they were employed by two entities which had the same directorship and shareholders or which had other features, not covered by s 50 of the Corporations Act, which made a factual finding that they were 'one and the same' open. I do not see why, by my decision on this matter, I should rule out such an argument being made in a later matter on the facts established in that matter.
144 Similarly, although the question being answered in the affirmative may assist the respondent, it being answered in the negative is really neither here nor there so far as the facts are concerned. While I may decide that the relationships described by s 50 of the Corporations Act do not, as a matter of course, mean that employment for entities so related is employment for 'one and the same' employer (and the reasons for decision of Acting President Smith in this matter with which Chief Commissioner Scott agrees decides this) this would not rule out evidence being led to establish, nonetheless, the entities in this case were one and the same for other reasons.
145 For instance, there may be some evidence relating to direction or control that could be relied upon to argue for a finding that the entities concerned in this matter were, in fact, one and the same even though the mere fact of them being 'related' in the sense used on s 50 of the Corporations Act is found to be insufficient to establish this.
146 In other words, I am of the view that the arguments need to be made after the evidence has been led so that the decision maker can arrive at a decision on the facts of the case before it, which is what, in my view, the factual enquiry invited by s 8(1) requires.
147 As the matter currently stands the effect of his Honour's decision, given it was made without the benefit of full evidence (and I have already said I do not consider the pleaded matters to amount to full evidence), has been to judicially amend the Long Service Leave Act to include words similar to those other State Parliaments have inserted into equivalent legislation relating to 'related' entities.
148 This outcome should have, with respect, been avoided by his Honour.
149 That the Western Australian Parliament has not inserted such words into the Long Service Leave Act cannot be ignored. The Western Australian Parliament considers that the test is whether the employee has been employed by 'one and the same employer' but has not gone further to provide that the factual enquiry invited by the subsection is not required in certain circumstances. I do not think the courts should effectively so provide.
150 For these reasons I would allow the appeal and suspend the decision of the learned Magistrate and remit the matter back to his Honour for further hearing and determination.