TWU of New South Wales v A J Mills & Sons t-as Mills Transport CDM Logistics [2008] NSWIRComm 245

Industrial Court of New South Wales

CITATION: TWU of New South Wales v A J Mills & Sons t-as Mills Transport CDM Logistics [2008] NSWIRComm 245

APPLICANT: Transport Workers' Union of New South Wales PARTIES: DEFENDANT: A J Mills & Sons Pty Ltd t/as Mills Transport CDM Logistics

FILE NUMBER(S): IRC 1509 of 2007

CORAM: Haylen J

Long Service Leave Act 1955 - s 11(a)(a1)(i),(v),(vi), - seasonal work undertaken by drivers in the sugar cane industry - work typically lasts 6 to 7 months each year - seasonal work intense and involving teams working three shifts per day and usually seven days per week - training required to perform driving duties - initial period of probation - - enterprise agreement specifies weekly employment - accrual of sick leave permitted from season to season - drivers paid annual leave and provided with separation payslip at end of season - drivers given option to have annual leave held by employer until required - drivers indicate their availability to work next season - employer invariably employed drivers who indicated their availability to work next season - drivers held to have rendered continuous service under one or more contracts of mployment - any absence capable of breaking continuity of employment allowed under terms of workers' employment - doubt as to whether any relevant break in service due to slackness of trade or allowed by leave of the employer - declaration made that drivers entitled to long service leave - relevance of principle of estoppel in industrial cases - no discretionary issues impinge on making of declarations

Statutes - interpretation - Long Service Leave Act 1955 - what constitutes "continuous service" - what were "terms of the worker's employment" - what constitutes "slackness of trade" or "leave of the employer" CATCHWORDS: Declaration - whether seasonal cane drivers entitled to long service leave - provisions of Long Service Leave Act 1955 considered - no issue as to the precise entitlement - declaration made