2025 WAIRC 00364
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA
CITATION
:
2025 WAIRC 00364



CORAM
:
INDUSTRIAL MAGISTRATE R. COSENTINO



HEARD
:
WEDNESDAY, 16 APRIL 2025



DELIVERED
:
WEDNESDAY, 18 JUNE 2025



FILE NO.
:
M 95 OF 2024



BETWEEN
:
PHOOLWUNTEE DEVI KULLUP


CLAIMANT





AND





SOUTH METROPOLITAN HEALTH SERVICE AS AGENT FOR THE STATE OF WESTERN AUSTRALIA


RESPONDENT

CatchWords : INDUSTRIAL INDUSTRIAL LAW (WA) – long service leave – s 4A of the Long Service Leave Act 1958 (WA) – whether long service leave entitlements of the WA Health System - HSUWA  PACTS Industrial Agreement 2022 are at least equivalent to Long Service Leave Act entitlement – test for equivalence in s 4A – whether test is global or several – whether Long Service Leave Act applies to the claimant – whether claimant was an employee for the purpose of the former LSL Act definition of employee – whether service with employer deemed continuous under former LSL Act – no deeming effect – claim dismissed
Legislation : Long Service Leave Act 1958 (WA)
Industrial Relations Act 1979 (WA)
Industrial Relations Legislation Amendment Act 2021 (WA)
Minimum Conditions of Employment Act 1993 (WA)
Interpretation Act 1984 (WA)
Fair Work Act 2009 (Cth)
Instrument : WA Health System – HSUWA – PACTS Industrial Agreement 2022
Serco – HSUWA Fiona Stanley Hospital Agreement 2019
Case(s) referred
to in reasons: : Public Transport Authority v Yoon [2017] WASCA 25; (2017) WAIG 249
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2024] WASCA 38
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7; (2017) 259 CLR 106
Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCAFC 223; (2018) 268 FCR 128
James Cook University v Ridd [2020] FCAFC 123; (2020) 278 FCR 566
Australian Industry Group v Fair Work Australia [2012] FCAFC 108; (2012) 205 FCR 339
Result : Claim dismissed
Representation:
Claimant : Mr S. Kemp (of counsel)
Respondent : Mr J. Carroll (of counsel)

REASONS FOR DECISION
1 The claimant, Phoolwuntee Devi Kullup worked as Chef de Partie in Fiona Stanley Hospital’s patient catering services from September 2014 until she resigned in May 2024. She worked at the Hospital for just under 10 years in total. For slightly shy of seven years, her employer was Serco Australia Pty Ltd. For the last few years, her employer was the respondent, South Metropolitan Health Service as agent for the State of Western Australia. She performed the same services for the Health Service as she had done for Serco.
2 When Ms Kullup’s employment ended, the WA Health System – HSUWA – PACTS Industrial Agreement 2022 applied to her employment. Under the 2022 Industrial Agreement, long service leave accrued and was payable on termination of employment after 10 years’ continuous service. Ms Kullup did not have 10 years’ continuous service to qualify for the 2022 Industrial Agreement’s entitlement.
3 Under the Long Service Leave Act 1958 (WA) as at 9 May 2024 (LSL Act), an employee to whom the LSL Act applied was entitled to payment instead of long service leave upon termination of employment after at least seven years of continuous service. LSL Act s 8(3), s 9(2).

4 In these proceedings, Ms Kullup claims that:
a. the LSL Act applied to her when her employment with the Health Service ended;
b. her period of service with Serco is deemed to be employment with the Health Service for the purpose of the transmission of business provisions of the former LSL Act; and
c. she was therefore entitled to payment in lieu of long service leave on termination of her employment under s 9(2A) of the LSL Act.
5 Ms Kullup seeks orders for:
a. payment of $14,171.45 pursuant to s 83A(1) of the Industrial Relations Act 1979 (WA) (IR Act)
b. a pecuniary penalty to be imposed on the Health Service pursuant to s 83(4)(a)(ii) of the IR Act, paid to her pursuant to s 83F(2)(b);
c. interest; and
d. costs.
6 The Health Service denies Ms Kullup is entitled to payment on termination for long service leave under the LSL Act because:
a. the effect of s 4A(4) of the LSL Act is that the LSL Act did not apply to Ms Kullup, as she had a separate entitlement under the 2022 Industrial Agreement that was at least equivalent to the LSL Act entitlements; and
b. Ms Kullup’s employment with Serco does not count towards the entitlement under the LSL Act in any event, because it is not part of continuous service. She therefore did not have seven years continuous service to qualify for any entitlement under the LSL Act.
7 The question of whether the LSL Act applies to Ms Kullup involves first, ascertaining the true meaning of s 4A(4) of the LSL Act, and in particular, what entitlement is or entitlements are to be compared for the purpose of the section. Then it involves a comparison between the relevant entitlement(s) to determine whether the relevant entitlement(s) under the 2022 Industrial Agreement is or are at least equivalent to the relevant entitlement(s) under the LSL Act.
8 The question of whether Ms Kullup’s service with Serco counts as continuous service only needs to be determined if the LSL Act applied to Ms Kullup. If this question needs to be determined, its determination involves:
a. whether the definitions of ‘employee’ and ‘employer’ in s 4(3) of the former LSL Act apply when applying the test in s 6 of the former LSL Act for transmission of business;
b. if yes, whether Ms Kullup was entitled to long service leave entitlements prior to the alleged transmission of business by virtue of a Commonwealth enactment for the purpose of s 4(3) of the former LSL Act;
c. if yes, whether Ms Kullup’s entitlements by virtue of that enactment were at least equivalent to the entitlements under the LSL Act, so she was excluded from the definition of ‘employee’ for the purpose of s 6 of the former LSL Act at the time of the alleged transmission; and
d. if the answer to a. is no or the answer to c. and d. is yes, whether the insourcing of certain services from Serco to the Health Service was a transmission of business for the purpose of s 6(4) of the former LSL Act.
Jurisdiction
9 Section 11 of the LSL Act confers jurisdiction on the Industrial Magistrates Court (IMC) to hear and determine all questions and disputes in relation to rights and liabilities under the LSL Act, including whether a person is or is not an employee to whom the LSL Act applies.
10 Under s 83 of the IR Act, a person to whom an entitlement provision applies under the LSL Act is able to apply to the IMC for enforcement of the entitlement provision. A provision of Part III of the LSL Act is an ‘entitlement provision’. IR Act s 7.

11 If the LSL Act applies to the claimant, then the claimant is a person entitled to apply to the IMC for enforcement of it.
12 If a contravention of an entitlement provision is proved, the IMC may impose a pecuniary penalty. IR Act s 83(4).

13 In proceedings brought under s 83(1), if it appears to the IMC that an employee has not been paid an amount to which the employee was entitled to be paid under an entitlement provision, the IMC must order the respondent to pay the amount by which the employee has been underpaid. IR Act s 83A.

14 The parties agreed that if a contravention is proved, the IMC should reconvene to determine what orders should be made under s 83 and s 83A.
Agreed Facts
15 The hearing as to whether a contravention was proved proceeded on the basis of uncontentious facts, set out in an Agreed Statement of Facts and agreed documents.
16 The Agreed Statement of Facts is Schedule I to these reasons.
What must be compared under s 4A(4) of the LSL Act?
17 The Industrial Relations Legislation Amendment Act 2021 (WA) repealed the former s 4(3) of the LSL Act, and inserted s 4A. Amendment Act s 83(4), s 84.

18 Section 4A says:
4A. Employees with equivalent separate LSL entitlements
(1) In this section —
award, agreement or enactment means —
(a) an award or industrial agreement; or
(b) an agreement between an employer and employee (including an employer - employee agreement); or
(c) an enactment of the State, the Commonwealth, another State or a Territory;
entitlement, in relation to long service leave or payment on termination instead of long service leave, includes an eligibility to become entitled to the long service leave or payment on termination instead of long service leave;
WA LSL means long service leave, or payment on termination instead of long service leave, under Part III.
(2) For the purposes of this section, a separate LSL entitlement is an entitlement to long service leave, and a payment on termination instead of long service leave, under an award, agreement or enactment.
(3) For the purposes of this section, a payment (whether in the form of a loading, other additional incremental payment or otherwise) instead of an entitlement under subsection (2) is not a separate LSL entitlement.
(4) This Act does not apply to an employee who has a separate LSL entitlement to take long service leave and to be paid on termination instead of long service leave that is at least equivalent to the entitlement to WA LSL to take long service leave and to be paid on termination instead of long service leave.
(5) Subsection (6) applies to an employee —
(a) who becomes entitled to WA LSL in relation to employment with an employer; and
(b) who, immediately before becoming entitled to WA LSL, had a separate LSL entitlement in relation to employment with the employer.
(6) Any long service leave taken by, or payment on termination instead of long service leave made to, the employee under the separate LSL entitlement must be taken into account in the calculation of the employee’s entitlement to WA LSL as if it were taken, or paid on termination, as WA LSL.
The parties’ submissions
19 It is common ground that if the conditions of s 4A(4) are met, the LSL Act does not apply to an employee. It is also agreed that for the purpose of making the necessary comparison under s 4A(4), the comparison must be undertaken prospectively, that is, based on a comparison of the terms of the competing instruments at the time each applies, and not retrospectively by reference to individual circumstances that change from time to time. Public Transport Authority v Yoon [2017] WASCA 25; (2017) WAIG 249 (Yoon) at [61] and [66].

20 The parties have different views as to how the comparison for equivalence under s 4A(4) should be undertaken. Should the respective entitlements be compared severally or globally?
21 Ms Kullup argues for a severable approach: that s 4A(4) excludes the operation of the LSL Act only where the relevant industrial instrument both:
a. provides an entitlement to take long service leave that is at least equal to the entitlement under the LSL Act to take long service leave; and
b. provides an entitlement to be paid on termination instead of long service leave that is at least equal to the entitlement under the LSL Act to be paid on termination instead of long service leave.
22 In other words, the equivalency comparison must compare separately the entitlement to take long service leave, and the entitlement to payment on termination. If either of these two entitlements is not at least equivalent to the statutory entitlement, s 4A(4) does not apply.
23 Ms Kullup draws support for this construction from the words used in the section itself, together with its departures from the historical provision from which the section originated, specifically s 4(3) which said:
4. Interpretation
…
(3) Where a person is, by virtue of —
(a) an award or industrial agreement;
(b) an employer-employee agreement under Part VID of the Industrial Relations Act 1979 or other agreement between the person and his employer; or
(c) an enactment of the State, the Commonwealth or of another State or Territory,
entitled to, or eligible to become entitled to, long service leave at least equivalent to the entitlement to long service leave under this Act, that person is not within the definition of ‘employee’ in subsection (1).
24 Ms Kullup’s counsel noted that in Public Transport Authority v Yoon [2017] WASCA 25; (2017) WAIG 249, the Industrial Appeal Court (IAC) found that s 4(3)’s reference to ‘entitled to long service leave’ encompasses two entitlements provided for by s 8 of the LSL Act, being the entitlement to take long service leave, and the conditional right to be paid on termination. The Explanatory Memorandum to the Industrial Relations Legislation Amendment Bill 2021 (WA) confirms at [547] that s 4A(4) was introduced to replace s 4(3), while acknowledging the two aspects of the entitlement to long service leave by reference to the decision in Yoon. However, where the Explanatory Memorandum at [558] suggests that s 4A(4) replicates the effect of the former s 4(3), Ms Kullup submits the Explanatory Memorandum is wrong.
25 The Health Service argues that s 4A operates on a global comparison, in the same manner as the former s 4(3), despite differences in structure and wording effected by the Amendment Act. The Health Service says its construction is supported by the legislative history of the provision, and the intention that s 4A replace s 4(3). In Yoon, the IAC considered the meaning and application of s 4(3), relevantly finding that the comparison required by s 4(3) must be undertaken in a global way, involving a broad and evaluative analysis weighing the comprehensive benefits provided under the two instruments overall.
26 The Health Service says that s 4A was not intended to change the approach as set out in Yoon. This is evident from the definitions of ‘entitlement’ and ‘WA LSL’ in s 4A, which each reflect the observations of the IAC as to the elements of the previous s 4(3). Specifically, the new defined terms in s 4A use language that is consistent with the IAC’s description of one comprehensive entitlement, albeit comprising successive specific entitlements or benefits. None of the Amendment Act’s changes to s 8 and s 9 and their structure, which featured in the IAC’s reasoning about the meaning of s 4(3), make substantive changes which affect the IAC’s analysis that there is only one comprehensive entitlement, or would mean that the IAC’s analysis was no longer applicable.
Principles of Statutory Construction
27 The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute. Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky) at [69].
The principles were recently and relevantly summarised by the Court of Appeal in Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2024] WASCA 38 at [200] – [208] (citations omitted):
The focus of statutory construction is upon the text of the provisions having regard to their context and purpose.
The statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision.
The context includes the legislative history and extrinsic materials.
At common law, apart from any reliance upon s 19 of the Interpretation Act 1984 (WA), a court may have regard to reports of law reform bodies to ascertain the mischief which a statutory provision is intended to remedy.
However, legislative history and extrinsic materials cannot displace the meaning of statutory text. Further, the examination of legislative history and extrinsic materials is not an end in itself.
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. 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.
Recently, in ENT19 v Minister for Home Affairs, Gordon, Edelman, Steward and Gleeson JJ made these observations:
The context of the words, consideration of the consequences of adopting a provision’s literal meaning, the purpose of the statute and principles of construction may lead a court to adopt a construction that departs from the literal meaning of the words of a provision. One such principle is that legislation must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. As expressed by Gageler J in SAS Trustee Corporation v Miles, ‘statutory text must be considered from the outset in context and attribution of meaning to the text in context must be guided so far as possible by statutory purpose on the understanding that a legislature ordinarily intends to pursue its purposes by coherent means’. Where conflict appears to arise in construing an Act, ‘the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions’, and this ‘will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Ultimately, the task in applying the accepted principles of statutory construction is to discern what Parliament is to be taken to have intended.
28 These principles mean that context should be considered at the first stage and in its widest sense. SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14].
Context may encompass the structure of the Act and surrounding provisions.
The Long Service Leave Act’s text and context
29 Section 4A(4) has multiple, and duplicated, references to ‘entitlements’.
30 The defined terms ‘separate LSL entitlement,’ ‘entitlement’ and ‘WA LSL’ (definitional words), all involve a compositional concept: a single composite entitlement with separate distinct components. The separate distinct components of the entitlements are then described again in s 4A (duplicated words).
31 One might expect the definitional words to operate as a device to save repetition in s 4A(4) and make it easier to read. However, they do not appear to have been deployed in this way.
32 Ms Kullup argues that if the equivalence comparison was to be between the composite ‘separate LSL entitlement’ and composite ‘WA LSL’ entitlement, s 4A(4) could have been expressed without the duplicated words. It could have said:
This Act does not apply to an employee who has a separate LSL entitlement that is at least equivalent to the entitlement to WA LSL.
33 If the duplicated words must be given meaning and effect, and not be regarded as superfluous Pearce D, Statutory Interpretation in Australia (9th ed, 2019) (Pearce) at [2.43].
then the duplicated words must mean something different to the definitional words. The difference, according to Ms Kullup, must be that the duplicated words import two separate and distinct elements for comparison. The use of the duplicated words shows that the equivalence comparison must be performed on the distinct components of the long service leave entitlement, rather than the composite entitlement that is defined.
34 The Health Service argues that duplication within s 4A is a plain drafting error, because importing the definitions into s 4A(4) makes the provision nonsensical.
35 The Health Service’s contended for construction means that the duplicated words in s 4A(4) are superfluous. This is against the general construction principle that all words must be given some meaning and effect. However, it is doubtful what meaning and effect they can sensibly be given which would make a clear path to Ms Kullup’s contended for construction.
36 Ms Kullup emphasises the role of the word ‘and’ in the phrase ‘to take long service leave and to be paid on termination instead of long service leave’. She says this indicates that what is being compared is two entitlements, compared separately.
37 The first difficulty with this argument is that it sits uneasily with the section’s structure. Structurally, it is more natural to read the duplicated words as qualifying the preceding definitional words.
38 The second difficulty is that it involves disharmony with the Act’s scheme, and inconsistency with the Act’s concept of long service leave entitlements as a comprehensive, composite entitlement. It does not ‘give effect to harmonious goals’. Project Blue Sky at [70].
The meaning given to the phrase ‘to take long service leave and to be paid on termination instead of long service leave’ is inconsistent with the concept, embodied in the definition of WA LSL, that long service leave under Part III is a single, composite entitlement.
39 In Statutory Interpretation in Australia, the learned author records that the general principle that words should be given meaning and effect is subject to the overriding consideration that it may be impossible to give full and accurate meaning to every word. Pearce at [2.43].
The learned author cites the plurality in Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7; (2017) 259 CLR 106 at [55] (citations omitted):
Lastly, whilst it must be accepted that words chosen by the legislature should be given meaning and endeavours should be made to avoid them being seen as redundant, they should not be given a strained meaning, one at odds with the scheme of the statute. Moreover, it has been recognised more than once that Parliament is sometimes guilty of ‘surplusage’ or even ‘tautology’. The possibility that Parliament may not have appreciated that the reference in s 177(2)(b) was not necessary, and was liable to confuse, is not a reason for giving it a literal interpretation.
40 In Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCAFC 223; (2018) 268 FCR 128, the Full Court of the Federal Court of Australia said at [86]:
It has been recognised that, in some instances, it may not be possible to give a sensible meaning or operation to every word. Thus, for example, in Ajinomoto Company Inc v NutraSweet Australia Pty Ltd [2008] FCAFC 34; 166 FCR 530, Black CJ, Sundberg and Weinberg JJ acknowledged at [114] that all words must, prima facie, be given some meaning and effect, but that this general principle was ‘subject to the overriding consideration that it may be impossible to give a full and accurate meaning to every word. In such cases it is the duty of the court to give the words the construction that produces the greatest harmony and the least inconsistency’.
41 This is a case where the meaning of the duplicated words is impossible to discern, such that they should be regarded as superfluous rather than be given a strained meaning. It may be that the drafters sought to qualify the preceding definitional words to put beyond doubt that the entitlements being compared must comprise both an entitlement to take long service leave as well as an entitlement to be paid on termination. In the end, the words do not appear to have any work to do.
42 The LSL Act’s long title indicates the Act’s scope and purpose. An Act’s long title is part of the Act and is to be taken into account in considering the context in which the other provisions appear. Pearce [4.60].
The LSL Act’s long title is:
An Act to provide for the granting of long service leave to certain Western Australian employees and for matters incidental thereto (emphasis added).
43 In Yoon, the plurality described the long title as denoting a scheme for ‘the provision of statutory long service leave to some employees only’ [64]. It is not a purpose of the LSL Act to create a universal scheme of long service leave for all employees.
44 Part III of the LSL Act contains the substantive long service leave entitlements. These entitlements are conferred on ‘an employee’.
45 ‘Employee’ is defined expansively in Part II Division 1 of the LSL Act as meaning:
employee —
(a) means —
(i) a person who is employed by an employer to do work for hire or reward, including as an apprentice; or
(ii) a person whose usual status is that of an employee;
and
(b) includes a casual or seasonal employee; LSL Act s 4(1).

where ‘employer’ means:
employer includes any of the following employing 1 or more employees —
(a) a person or public authority as defined in the IR Act;
(b) except as provided in the Foreign States Immunities Act 1985 (Commonwealth) section 12, a foreign state or consulate;
(c) a related body corporate of the employer if the employer is itself a body corporate. LSL Act s 4(1).

46 The heading of Part II is headed ‘Construction and application of this Act.’ Section 4A appears in Division 1 of Part II.
47 As indicated in the heading to Part II, s 4A is about the application of the Act, that is, whether the Act applies to an employee as defined.
48 Section 4A is the only section of the Act which is about who the LSL Act does and does not apply to. There is no other section which delineates the LSL Act’s scope, so as to limit the application of the Act to ‘certain’ employees as referred to in the long title. Provided a person is an employee as defined, unless s 4A(4) is triggered, the LSL Act applies.
49 This structure contrasts with the Minimum Conditions of Employment Act 1993 (WA) (MCEA) which has as its long title ‘An Act to provide for minimum conditions of employment for employees in Western Australia and for related purposes.’ Its purpose is ‘to provide for fair and enforceable minimum conditions of employment’. Minimum Conditions of Employment Act 1993 (WA) s 2A.
Section 5 of the MCEA says:
5. Minimum conditions extend to and bind all employers and employees
(1) The minimum conditions of employment extend to and bind all employees and employers and cannot be displaced by an industrial instrument or contract of employment.
(2) A provision in, or condition of, an industrial instrument or a contract of employment that is less favourable to the employee than a minimum condition of employment has no effect and the minimum condition is taken to be the term of the industrial instrument or contract of employment instead.
(3) A provision in, or condition of, an agreement or arrangement that purports to exclude the operation of this Act has no effect, but without prejudice to other provisions or conditions of the agreement or arrangement.
(4) A purported waiver of a right under this Act has no effect.
(5) This section has effect subject to section 8. Section 8 deals with cashing out of accrued paid annual leave.

50 The LSL Act contains no words like these, making it clear that long service leave entitlements extend to and bind all employees and employers, and cannot be displaced by an industrial instrument or contract of employment. The Amendment Act also amended the MCEA. The legislature must therefore be taken to have been cognisant of the difference between the MCEA and the LSL Act in this regard.
51 Long service leave entitlements under the LSL Act are not universal minimum conditions. This is important context for giving meaning to s 4A(4).
52 The practical effect of Ms Kullup’s contended for construction is that only when an industrial instrument or enactment provides for both equivalent entitlements to take long service leave and equivalent entitlements to be paid on termination as contained in the LSL Act, would the LSL Act cease to apply. The LSL Act’s component entitlements would become, in effect, universal minimum conditions for all employees. Indeed, Ms Kullup’s contended for construction would make s 4A practically redundant. A separate LSL entitlement could not ever displace the entitlements under the LSL Act, which then begs the question as to what purpose is served by the Act not applying to an employee in the circumstances s 4A(4) describes?
53 A final textual consideration is that s 4A(4) is expressed in the singular:
‘a’ separate LSL entitlement is compared with ‘the’ WA LSL entitlement. Under s 10 of the Interpretation Act 1984 (WA), words in the singular number include the plural, unless the intent and object of the Act, or something in the subject or context of the Act is inconsistent with such application. Interpretation Act 1984 (WA) s 3(1), s 10.
Section 4A(4) is directed at determining whether the Act applies to ‘an employee’. The subject of the section is singular. The subject is therefore inconsistent with the application of the rule in s 10.
54 Accordingly, the use of the singular preceding ‘separate LSL entitlement’ and ‘WA LSL entitlement’ is also indicative of a long service leave entitlement being a single, composite entitlement.
Legislative history & extrinsic materials
55 Prior to the enactment of s 4A(4), the LSL Act’s carve out was achieved by an exclusion, in s 4(3), from the definition of ‘employee’ as set out in paragraph [23] above.
56 The IAC considered the meaning of this exclusion in Yoon. Ms Yoon’s employment was covered by an industrial agreement which contained certain entitlements to long service leave. When she left her employment, she was not eligible for pro-rata entitlements under the industrial agreement. However, she claimed an entitlement under the LSL Act to pro-rata long service leave after seven years. The first issue before the IAC was the nature of, and circumstances in which the comparison required by s 4(3) was to be undertaken. The second issue was the manner of comparison: whether the comparison was global, or several.
57 At [39] the plurality noted that prior to the commencement of s 4(3) of the LSL Act, persons were excluded from the entitlement to LSL under the LSL Act if their terms of employment were regulated by certain awards or industrial agreements, which may not have provided for long service leave, and also if they were covered for long service leave elsewhere.
58 Considering s 8 of the LSL Act, the plurality noted that the term ‘long service leave’ is not defined, but, when s 8 is read as a whole, it is apparent that the term encompasses two aspects of entitlement, namely, the granting and taking of leave while maintaining continuity of employment, and a conditional right to payment in lieu of pro-rata long service leave on termination. Yoon [40].

59 After concluding, at [60], that the phrase ‘the entitlement to long service leave under this Act’ operates on the basis that the LSL Act provides for a comprehensive entitlement, the plurality resolved the second construction issue in favour of the Authority’s contended for global approach, stating at [72] – [73]:
The word ‘equivalent’ ordinarily means equal in value, measure, effect or significance. The task of identifying whether there is at least equivalence between two instruments is necessarily a broad and evaluative one involving the overall weighing of the benefits provided under the two respective instruments. The evaluation is to be undertaking having regard to the objectives of the LSL Act, referred to in [42] above.
That conclusion is confirmed by, but not dependent upon, the further observation that a legislative intention that a comparison be undertaken prospectively between a legislative entitlement to long service leave on the one hand, and an entitlement under an award or industrial agreement on the other is not a novel one, as the decision in Kennedy indicates. In Kennedy, the Commission observed:
As this comparison has to be made without advance knowledge of how particular individuals may fare ultimately in their employment, it must be based on an estimate of what is likely to be best for the majority of individuals involved - in other words, on the principle of the greatest good for the greatest number. The only way to do this is to examine each set of provisions as a whole, weighing the various pros and cons and arriving at a final balance on an overall basis. This means that the workers have to be considered as a group over the whole range of their possible employment. This may involve speculation often on imprecise material but, in the end, the answer must be ‘Yes’ or ‘No’. To answer ‘Yes and No’ is not permissible (citations omitted).
60 The legislature has indicated its approval of the IAC’s interpretation of 4(3) in Yoon. The Explanatory Memorandum refers to the recommendations of the 2018 Ministerial Review of the State Industrial Relations System (Ministerial Review), to ‘modernise the Long Service Leave Act 1958 and introduce penalties for non-compliance.’ At [38] the Explanatory Memorandum says:
38. The Bill amends the LSL Act to:
a) clarify the absences that do not break an employee’s continuous employment, and the absences that do and do not count towards the length of an employee’s continuous employment. This includes specific provisions relating to casual and seasonal employees, and apprentices;
b) clarify existing provisions relating to the cashing out of long service leave;
c) replace existing transmission of business provisions with transfer of business provisions, based on the FW Act transfer of business provisions;
d) provide for increased flexibilities regarding the taking of long service leave;
e) enable a long service leave entitlement to be enforced under s 83 of the IR Act and so ensure that contraventions attract a penalty consistent with the treatment of contraventions of other minimum employment entitlements; and
f) repeal spent provisions.
61 Notably, this summary of the purposes of the amendments does not include any suggestion that the scope of the LSL Act’s application is to be amended. The Final Report of the Ministerial Review recommended that the IR Act be amended to include a Part that provides for minimum conditions of employment for employees covered by the State system, but did not recommend changes which would alter the effect of s 4(3): Ministerial Review recommendations 54 & 56.

62 The Explanatory Memorandum describes the introduction of s 4A as, in effect, replacing the existing s 4(3):
547. Section 4A, in effect, replaces existing s 4(3).
548. An employee’s entitlement to long service leave under the LSL Act comprises an entitlement to take leave (in accordance with existing s 8(1) and s 8(2)(a) and (b)), and a conditional right to payment in lieu of long service leave on termination (in accordance with existing s 8(2)(c) and s 8(3)): Public Transport Authority of Western Australia v Yoon [2017] WASCA 25 at [40]. Both entitlements are paid on an employee’s ordinary pay.
…
557. The comparison under s 4A(4) is whether an employee’s entitlement to take long service leave and to be paid for long service leave on termination under the separate LSL entitlement is at least equivalent to the entitlement to take paid long service leave on ordinary pay and be paid on termination instead of long service leave on ordinary pay under Part III of the LSL Act. If this comparison demonstrates that the employee’s separate LSL entitlement is at least equivalent to Part III of the LSL Act, the LSL Act will not apply to that employee.
558. This provision replicates the effect of existing s 4(3) (emphasis added).
63 The Explanatory Memorandum’s reference to s 4(3) being replaced is consistent with the fact that the enactment of s 4A introduced a new mechanism for limiting the scope of the LSL Act’s application. Rather than the carve out being contained in an exclusion from the definition of ‘employee’, the carve out is expressed as the Act not applying to those who fall within s 4A(4).
64 In contrast, the comparative exercise is replicated not replaced.
65 I disagree with Ms Kullup’s submission that the Explanatory Memorandum is wrong in its description of the effect of s 4(3). The legislative history and the Explanatory Memorandum support the view that it was not the legislature’s intention to alter the comparison required or to alter the substantive effect of s 4(3).
66 Accordingly, s 4A(4) does not require separate comparison of the components making up a long service leave entitlement. Rather, the comparison is a single comparison of the composite entitlements, assessed globally.
Is the LSL entitlement under the Industrial Agreement at least equivalent to WA LSL?
67 The 2022 Industrial Agreement was registered on December 2022. It is agreed that is the relevant date for the purpose of the comparison required by s 4A(4), noting that s 4A commenced operation on 20 June 2022.
68 The Health Service provided a table comparing the relevant provisions of the LSL Act and the Industrial Agreement for comparison purposes. This is attached as Schedule II to these reasons. In summary, under the LSL Act an employee is entitled to 8 and 2/3 weeks of long service leave after 10 years continuous service and payment instead of long service leave upon termination of employment after at least seven years of continuous service. LSL Act s 8(2) and s 8(3) read with s 9(2).

69 The Industrial Agreement grants employees 13 weeks of long service leave on the completion of 10 years of continuous service Industrial Agreement cl 45.1.
and payment on termination in lieu of long service leave proportionate to the employee’s length of service if the employee:
a. has completed 10 years of continuous service; or
b. retires at or over the age of 55 years; or
c. retires on the grounds of ill health and the employee has completed not less than 12 months’ continuous service before the date of retirement; or
d. is retired by the employer for any other cause and the employee has completed not less than three years’ continuous service; or
e. dies and has completed not less than 12 months’ continuous service. Industrial Agreement cl 41.10.

70 Both the LSL Act and the Industrial Agreement provide for payment at the employee’s ordinary pay excluding shift penalties. LSL Act s 7, s 7A, s 8(1), Industrial Agreement cl 3.2, cl 45.1.

71 Schedule II shows that there is only one way in which the LSL Act entitlement is more favourable than the 2022 Industrial Agreement entitlement. That is where an employee ceases employment with between seven and 10 years continuous employment, where none of the circumstances listed in paragraph [69] above apply.
72 Otherwise, the 2022 Industrial Agreement entitlement is equivalent to or more favourable than the LSL Act entitlement. In particular:
(a) If one of the circumstances identified in paragraph [69] applies, the pro-rata entitlement arises earlier than under the LSL Act, including with just one years’ service.
(b) In those circumstances the pro-rata entitlement is greater (being proportional to 13 weeks per 10 years’ service or 13 weeks per seven years’ service).
(c) After 10 years of employment, an employee under the 2022 Industrial Agreement has 4 1/3 more weeks LSL than a LSL Act employee.
(d) A LSL Act employee ‘catches up’ to a 2022 Industrial Agreement employee by 15 years’ employment (13 weeks’ total LSL).
(e) After 17 years’ service, a 2022 Industrial Agreement employee has 26 weeks total LSL, which is double the leave an LSL Act employee is entitled to at that point (13 weeks).
(f) Under the 2022 Industrial Agreement an employee has access to portability provisions which allow for service with other Commonwealth, State or Territory employers to be recognised for the purposes of LSL as long as the break between service is not more than one week.
73 On a broad evaluation of the package of entitlements under the 2022 Industrial Agreement compared with WA LSL as defined in the LSL Act, the 2022 Industrial Agreement entitlements are ‘superior’. Kenneth Martin J in Yoon.

74 Accordingly, the 2022 Industrial Agreement contains a separate LSL entitlement that meets the condition in s 4A(4) of being at least equivalent to WA LSL.
75 As a consequence, the LSL Act did not apply to Ms Kullup when her employment terminated.
Was there a transmission of business from Serco to the Health Service?
76 Because I have concluded that the LSL Act did not apply to Ms Kullup it is not strictly necessary for me to consider the remaining issues in this case. However, for completeness and in case I am wrong in my construction of s 4A(4), I will briefly set out my reasoning in relation to whether there was a transmission of business for the purpose of s 41.
77 It is not in dispute that s 41 of the LSL Act has the effect that the transmission of business provisions of the former LSL Act (s 6) applies. Section 41 says:
41. Business transmitted before commencement day
(1) This section applies in relation to the transmission, as defined in former section 6(5), of a business before the commencement day.
(2) For the purposes of determining whether an employee in the business has had continuous employment with an employer, on and after the commencement day —
(a) former sections 6 and 8 continue in operation; and
(b) Part II Division 3 does not apply.
78 Section 6 of the former LSL Act says:
6. What constitutes continuous employment
…
(2) For the purposes of this Act, the employment of an employee whether before or after the commencement of this Act shall be deemed to be continuous notwithstanding —
(a) the transmission of a business as referred to in subsections (4) and (5);
….
(4) Where a business has, whether before or after the coming into operation hereof, been transmitted from an employer (herein called the transmittor) to another employer (herein called the transmittee) and an employee who at the time of such transmission was an employee of the transmittor in that business becomes an employee of the transmittee — the period of the continuous employment which the employee has had with the transmittor (including any such employment with any prior transmittor) shall be deemed to be employment of the employee with the transmittee.
(5) In subsection (4) —
transmission includes transfer, conveyance, assignment or succession, whether voluntary or by agreement or by operation of law, and transmitted has a corresponding meaning.
79 The Health Service says s 6 must be read by importing the relevant defined terms in the former LSL Act, namely the definitions of ‘employee’ and ‘employer’ including the exclusion in s 4(3) reproduced at [23] above.
80 The Health Service argues that s 50 of the Fair Work Act 2009 (Cth) (FWA) is a Commonwealth enactment by virtue of which Ms Kullup was entitled to long service leave, read with the long service leave provided for by the Serco – HSUWA Fiona Stanley Hospital Agreement 2019 (Serco Agreement) which applied at the time Ms Kullup ceased working for Serco and commenced working for the Health Service. It further says that the entitlement was at least equivalent to long service leave under the former LSL Act, so Ms Kullup did not come within the definition of ‘employee’ by operation of s 4(3)(c). Consequently, Ms Kullup was not an employee and Serco was not an employer for the purpose of s 6.
81 The Serco Agreement is an enterprise agreement made under Part 24 of the FWA. It covered Ms Kullup and Serco and applied at the time of the purported transmission of business on 2 August 2021.
82 Ms Kullup’s case is that s 41 of the LSL Act does not import or preserve the definitions of employee and employer from the former LSL Act, for the purpose of applying s 6. Ms Kullup says that even if it did, the source of Ms Kullup’s entitlement was the Serco Agreement, not the FWA. It is agreed that the Serco Agreement is not an award or instrument referred to in s 4(3) because it was not made under the IR Act.
83 Section 41 is within Part 8 of the LSL Act. Part 8 is headed ‘Savings provisions for Industrial Relations Legislation Amendment Act 2021’. It is clear enough from the part heading that the purpose of s 41 is to ensure that the former transmission of business provisions continue to apply to transactions which occurred before the commencement of the Amendment Act. That is, it is intended to preserve the effect of s 6 of the former LSL Act.
84 If Ms Kullup’s approach to s 41 is accepted, the former LSL Act’s provisions would not continue to apply, nor would the amended transfer of business provisions apply, but there would be a third, hybrid test for when there is a transmission of business for the purpose of continuity of employment. On this approach, the ‘saved’ provisions would be altered.
85 There are several difficulties with this approach:
(1) Ms Kullup has not explained why the legislature might have intended to create a new hybrid test, different from that which applied prior to the commencement of the Amending Act and that which applies since the commencement of the Amending Act.
(2) The existence of a third test is inconsistent with the heading to Part 8, which ‘saves’ the operation of s 6 of the former LSL Act.
(3) Ms Kullup’s approach runs against the principle of non-retrospectivity, or the presumption of legality, and she has not attempted to rebut the presumption against retrospectivity.
86 For these reasons, I accept, as the Health Service contends, that the pre-Amendment Act definitions of ‘employee’ and ‘employer’ apply when s 41 is read with s 6 of the former LSL Act.
87 Was Ms Kullup entitled to long service leave by virtue of a Commonwealth enactment with respect to Serco?
88 There is no dispute that the Serco Agreement is not itself a law, or a Commonwealth enactment. James Cook University v Ridd [2020] FCAFC 123; (2020) 278 FCR 566 (Ridd) at [227].
It does, however, have statutory force. Australian Industry Group v Fair Work Australia [2012] FCAFC 108; (2012) 205 FCR 339 at [72].
The statutory force is given by the operation of s 50 of the FWA which prohibits the contravention of a term of an enterprise agreement. Ridd at [227].

89 The Serco Agreement, and the entitlements contained in it, are binding only because of the FWA’s provisions for enterprise agreements. This means that the Serco Agreement’s long service leave entitlement arose by virtue of a Commonwealth enactment, for the purpose of s 4(3)(c)’s exclusion from the definition of ‘employee’.
90 As I understand it, there is no dispute that if the long service leave entitlements under the Serco Agreement were to be compared with the LSL Act’s entitlements as required by s 4(3) of the former LSL Act, the Serco Agreement’s entitlements are at least equivalent. Clause 5.7 of the Serco Agreement provides for long service leave to be accrued, taken and paid ‘in accordance with the Long Service Leave Act 1958 (WA)’ but with the additional benefit of accessing pro rata long service leave any time after completion of seven years’ continuous service.
91 So, by the operation of s 4(3), Ms Kullup was not an ‘employee’ for the purpose of the former LSL Act’s definitions. Section 6(2) has a deeming effect only on ‘the employment of an employee’. Section 6 accordingly could not have any deeming effect on Ms Kullup’s employment with Serco.
92 This conclusion defeats Ms Kullup’s reliance on s 41 of the LSL Act read with s 6 of the former LSL Act to establish an entitlement to payment of accrued long service leave on termination of her employment. It means, in effect, that her employment with Serco does not count for the purpose of calculating her continuous service under the LSL Act, and so she would not qualify for the LSL Act’s entitlements even if the LSL Act had applied to her when her employment with the Health Service ended.
Disposition and Orders
93 For these reasons, the claim will be dismissed.


R. COSENTINO
INDUSTRIAL MAGISTRATE

SCHEDULE I: STATEMENT OF AGREED FACTS
The parties agree the following -
Contract between Serco and the State of Western Australia
1. The State of Western Australia (State) entered into a Facilities Management Services Contract (Contract) with Serco Australia Pty Limited (Serco) on 30 July 2011 with the initial term of the Contract to expire on 8 August 2021.
2. Under the Contract, Serco was to provide the defined facilities management services for the Fiona Stanley Hospital (Hospital) in accordance with the terms and conditions of the Contract. Those services included the patient catering service.
3. The Hospital opened on 3 October 2014 and under the Contract Serco began to provide facilities management services for the Hospital in accordance with the terms and conditions of the Contract.
4. The State entered into a Deed of Amendment (Deed) with Serco on 7 March 2020 to extend the term of the Contract to 8 August 2027 and to amend the Contract from the ‘Amendment Date’, being 2 August 2021.
5. Under the terms of the Deed:
(a) the Contract was amended to remove the patient catering service as a service provided by Serco under the Contract meaning that Serco was released from its obligation to provide the patient catering service from 1 August 2021;
(b) the State undertook to provide the patient catering service from 2 August 2021;
(c) the State became entitled to, and did subsequently, use catering equipment that Serco had used in delivering those services.
6. The Deed contained provisions for the State, acting through the respondent, to make offers of employment to Serco employees affected by the Deed following an initial expression of interest by affected by employees.
Claimant's employment
7. The claimant was employed by Serco from 21 September 2014 where she worked until her employment with Serco ended on 1 August 2021. She was engaged to, and did, provide services in patient catering at the Hospital on behalf of Serco.
8. As at 1 August 2021, the claimant’s employment was covered by the Serco – HSUWA Fiona Stanley Hospital Agreement 2019.
9. In accordance with the provisions of the Deed, the State, through the respondent, offered the claimant permanent full-time employment as a Chef De Partie to perform duties within the patient catering service at the Hospital.
10. The claimant accepted that offer of employment and, on 2 August 2021, the claimant commenced employment with the State in the position of Chef De Partie, undertaking duties within the patient catering service at the Hospital. Her employment was full time and permanent.
11. The duties that the claimant performed for the respondent at the Hospital were substantially the same as the duties she had previously undertaken for Serco.
12. The State used various items of equipment that Serco had used in the delivery of patient catering services and those items continued to be used by the claimant and others in the provision of those services from 2 August 2021.
13. On her commencement date of her employment with the State the WA Health System – HSUWA – PACTS Industrial Agreement 2020 (2020 HSU Agreement) applied to her employment.
14. The claimant's employment with the State ceased on 9 May 2024 as a result of the claimant's resignation. At the time her employment terminated, the claimant's annual salary was $88,287.
15. At the time that her employment with the State terminated, the WA Health System – HSUWA – PACTS Industrial Agreement 2022 (2022 HSU Agreement) applied to her employment with the State.
16. If the Court holds that the claimant was entitled to payment on termination instead of long service leave under the terms of the Long Service Leave Act 1958 (WA) based on continuous employment with Serco and then the respondent under that Act, the relevant entitlement is $14,171.45.
Agreed Documents
17. The following are agreed documents:
(a) Serco – HSUWA Fiona Stanley Hospital Agreement 2019.
(b) 2020 HSU Agreement.
(c) 2022 HSU Agreement.
(d) Letter to claimant dated 10 July 2020 – Expression of Interest – Pre-Offer of Employment (EOIPOE).
(e) Contract of employment.
(f) Acceptance form for contract of employment.
(g) Undated letter of offer made.
(h) Facilities Management Services Contract dated 30 July 2011.
(i) Deed of Amendment dated 7 March 2020.

SCHEDULE II: COMPARISON TABLE

COMPARISON TABLE



LSL Act
HSU Agreement
1
Any time

Employee retires at or over the age of 55: entitled to payment in lieu of long service leave proportionate to employee’s length of service (cl 45.10(a)(i)).
2
1 or more years

Employee retires on the grounds of ill health or employee dies: entitled to payment in lieu of long service leave proportionate to employee’s length of service (cl 45.10(a)(ii) and (iv)).
3
3 or more years

Employee retired for any other cause: entitled to payment in lieu of long service leave proportionate to employee’s length of service (cl 45.10(a)(iii)).
4
7 to <10 years
If employment terminated by death, or in any circumstance other than serious misconduct: entitled to pro-rata long service leave on the basis of 8 2/3 weeks for each 10 years of continuous employment (s 8(3)).

5
10 years
8 2/3 weeks leave at ordinary pay (s 8(2)(a)).
13 weeks leave at base rate of pay (cl 45.1).
6
15 years
Additional 4  1/3 weeks at ordinary pay (s 8(2)(b)). (Total = 13 weeks.)

7
17 years

Additional 13 weeks leave at base rate of pay (cl 45.1). (Total = 26 weeks.)
8
20 years
Additional 4  1/3 weeks at ordinary pay (s 8(2)(b)). (Total = 17 1/3 weeks.)

9
24 years

Additional 13 weeks leave at base rate of pay (cl 45.1). (Total = 39 weeks.)
10
25 years
Additional 4 1/3 weeks at ordinary pay (s 8(2)(b)). (Total = 26 weeks.)

11
Other benefits
No portability between different employers (unless transmission / transfer of business).
Portability of service with other Commonwealth, State or Territory employers (cl 45.14).

Early access to long service leave for employees within 7 years of preservation age (cl 45.6).