Secretary, Department of Employment v Simpson [2017] FCA 9

FEDERAL COURT OF AUSTRALIA

Secretary, Department of Employment v Simpson [2017] FCA 9 Appeal from: Simpson v Secretary, Department of Employment [2016] AATA 526

File number: VID 999 of 2016

Judge: JESSUP J

Date of judgment: 19 January 2017

Catchwords: INDUSTRIAL LAW – where employee's employment terminated after sale of business and subsequently hired by new employer – whether entitlement to long service leave under statute – whether Tribunal erred in holding entitlement owed by both employers – identification of correct employer at issue – appeal upheld.

Legislation: Fair Entitlements Guarantee Act 2012 (Cth) ss 3, 6, 10, 15 Long Service Leave Act 1992 (Vic) ss 60, 66, 72, 74

Cases cited: Melbourne Cricket Club v Clohesy (2005) 14 VR 206

Date of hearing: 6 December 2016

Registry: Victoria

Division: General Division

National Practice Area: Employment & Industrial Relations

Category: Catchwords

Number of paragraphs: 24

Counsel for the Applicant: Mr J Bourke QC with Mr M Follett

Solicitor for the Applicant: HWL Ebsworth

Counsel for the Respondent: The respondent did not appear

ORDERS VID 999 of 2016

BETWEEN: SECRETARY, DEPARTMENT OF EMPLOYMENT Applicant

AND: KATHLEEN SIMPSON Respondent

JUDGE: JESSUP J DATE OF ORDER: 19 JANUARY 2017

THE COURT ORDERS THAT:

1. Paragraph 2 of the Decision of the Administrative Appeals Tribunal made on 25 July 2015 be set aside. 2. The case be remitted to the Tribunal with a direction to affirm, in such terms as the Tribunal considers reflect the reasons of the Court published this day, the decision of the delegate of the applicant under s 15(1) of the Fair Entitlements Guarantee Act 2012 (Cth) that the respondent was not eligible for an advance in respect of long service leave. 3. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.