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 Building and Construction Industry Long Service Payments Act 1974 LEGISLATION CITED: Coal Mining Industry Long Service Leave Act 1950 Industrial Relations Act 1996 s 154 Industrial Arbitration Act 1940 Long Service Leave Act 1955, s 4(11)(a)(a1)(i)(v)(vii) Amalgamated Engineering Union of Employees; Queensland v Evans Deakin & Co Ltd 1972 AILR 186 In Re Storemen and Packers, etc Award (1951) AR (NSW) 527 at 557 Kaal Australia Pty Ltd v Federated Clerks' Union of Australia (2001) 103 IR 344 Lindner Pty Ltd v Builders Licensing Board (1982) 1 NSWLR 612 Metal Trades (Long Service Leave) Award 1964, [1967] 13 FLR 42 Queen v The Industrial Appeals Court and Automatic Totalisators Ltd Ex parte Raymond John Kingston (unreported - 26 February 1976) Re Australian Workers' Union and ors (1983) 4 IR 404 Re Butchers Wholesale (Cumberland) Award [1953] AR (NSW) 738 Re Engine Drivers (South Maitland Railways Ltd) Conciliation Committee [1938] AR (NSW) 276 CASES CITED: Re Sugar Manufacturers (State) and ors Award 1952 AR(NSW) 156 Re Maritime Services Board (General Division - Navigation & Shipping Branch) Award and ors (1984) 9 IR 263 Pambula District Hospital v Herriman (1988) 14 NSWLR 387 at 410 Robinson v New South Wales National Coursing Association Ltd (1982) 3 IR 161 Saraswati v R (1991) 172 CLR 1 Solora South Pty Ltd v McKendrick (1998) 85 IR 223 The Commission for Children and Young People v A (No 2) (2004) 132 IR 112 The Melbourne Cricket Club v Clohesy (2005) 15 VR 206 Williams v Waikerie Producers Ltd [2002] SAIRComm 3 (22 January 2002) HEARING DATES: 25 November 2008 DATE OF JUDGMENT: 17 December 2008 APPLICANT: Mr A Hatcher of counsel Instructed by Mr M Aird Transport Workers Union of NSW Legal Department LEGAL REPRESENTATIVES: RESPONDENT: Mr J Nolan of counsel SOLICITORS: Ms L Spence Harmers Workplace Lawyers JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: HAYLEN J 17 December 2008 Matter No IRC 1509 of 2007 TRANSPORT WORKERS UNION OF NEW SOUTH WALES v A J MILLS & SONS PTY LTD t/as MILLS TRANSPORT CDM LOGISTICS Application by Transport Workers Union of Australia New South Wales Branch for declaratory relief under s 154 of the Industrial Relations Act 1996 JUDGMENT [2008] NSWIRComm 245 INTRODUCTION 1 The Transport Workers Union of New South Wales ("TWU") has applied for a declaration pursuant to the provisions of s 154 of the Industrial Relations Act 1996. In essence, the application asserts that three drivers employed on a seasonal basis carting sugar cane for A J Mills & Sons Pty Ltd ("A J Mills") have entitlements under the provisions of the Long Service Leave Act 1955. While accepting that it was the employer, A J Mills opposed the application primarily on the grounds that, on a consideration of the terms of employment and having regard to the seasonal nature of the work, the three drivers in question did not qualify for long service leave. 2 The Amended Application for Declaration ultimately pressed by the TWU was in the following terms: 1. On its proper interpretation clause 4(11)(a1)(i) and/or clause 4(11)(a1)(v) and/or clause 4(11)(a1)(vi) of the Long Service leave Act 1955 establishes that, for the purposes of determining any entitlements to long service leave, the engagement of Mr Stan Bright should be deemed continuous from the time of Mr Bright's initial engagement with the Respondent, June 1989 up until 27 November 2004. 2. On its proper interpretation clause 4(11)(a1)(i) and/or clause 4(11)(a1)(v) and/or clause 4(11)(a1)(vi) of the Long Service Leave Act establishes that, for the purposes of determining any entitlement to long service leave, the engagement of Mr Ken Bryant, should be deemed continuous from the time of Mr Bryant's engagement with the Respondent, June 1985 up until 4 December 2004. 3. On its proper interpretation clause 4(11)(a1)(i) and/or clause 4(11)(a1)(v) and/or clause 4(11)(a1)(vi) of the Long Service Act 1955 establishes that for the purposes of determining any entitlement to long service leave the engagement of Mr Barry Hungerford should be deemed continuous from the time of Mr Hungerford's initial engagement with the Respondent, June 1993 up until 27 November 2004. THE EVIDENCE 3 Mr Stan Bright, Mr Ken Bryant and Mr Barry Hungerford were members of the TWU and employed by A J Mills during the sugar cane harvest season. In general terms they were employed for approximately six months of the year and, depending on the vagaries of the season, they transported sugar cane from farms to the Broadwater and Harwood sugar mills on the North Coast of New South Wales. A J Mills had engaged a number of employees on a seasonal basis to provide transport services to the Condong sugar mill, the Broadwater sugar mill and the Harwood sugar mill. Before A J Mills lost the sugar crane transporting contract for the 2005 season, the TWU alleged that the employees were engaged by A J Mills on a continuous basis each season and in excess of 10 years The TWU alleged that this continuous seasonal work nevertheless entitled the three employees to pro rata long service leave. 4 While the TWU tendered group certificates and tax returns for the three drivers, no calculation was made of the long service leave said to be owed to each driver, nor was any claim or declaration sought as to the payment of specific sums said to be owed on the application of the provisions of the Long Service Leave Act 1955. The TWU sought to raise an issue of principle by way of declaration and that course was not opposed by A J Mills. 5 Mr Bright's evidence was that he had worked as a seasonal cane driver for A J Mills for 16 consecutive seasons from 1989 until the contract was lost for the 2005 season. His job involved driving a truck to various farms to pick up bins of cane and delivering the cane to the Harwood sugar mill. In order to obtain this work he initially attended an interview with Mr Kelvin Mills and that was the process for all drivers in order to obtain a position with A J Mills. 6 Mr Bright stated that, towards the end of the season, if drivers wanted to return the following season they were to place their name in an exercise book left in the drivers' room. He said each driver would sign their name in the book but from approximately 2000 onwards, A J Mills did not use the exercise book method. 7 The end of the season would be notified when the sugar mills placed a notice indicating the expected last day of crushing but he did not recall A J Mills advising the drivers when the season concluded. On the last payday he would received two payslips, one being the final payslip for that week's work and the other was headed "Termination payment" and recorded what was paid out from four outstanding rostered days off plus annual leave loading. Sick leave, however, accrued from year to year. While sick leave accrued from year to year, public holidays and other entitlements such as bereavement leave were paid. In Mr Bright's view the position was always that he would be guaranteed work for the following year unless A J Mills indicated that his performance was unsatisfactory and that therefore he was not required. 8 Some time after the season was over and before the new season commenced Mr Bright would make a telephone call to A J Mills confirming his availability for that season and that also allowed him to be informed of the start date for the new season and the pre-season meeting that was always held. He usually called a Mr Nick Ciani a manager for A J Mills, who worked for Mr Kelvin Mills. The conversation was usually brief and Mr Ciani would inform him when the pre-season meeting was to be held and when they estimated the new season would begin. 9 Mr Reginald Mills, Mr Kelvin Mills and representatives of the sugar mills all attended the pre-season meetings. The representatives would go through the procedures for the new season and inform the drivers of any operational dangers. Mr Bright could not recall signing any paperwork at the pre-season meeting except for signing an attendance sheet. There were occasions when some of the drivers did not get to the pre-season meetings and he thought he had missed more than one pre-season meetings in his 16 years but that did not prevent him from commencing the new season. Mr Bright spoke of long service leave being raised on a number of occasions in relation to this work but the issue had not been resolved. 10 Mr Bright spoke of the Harwood mill workforce being "very stable" with the trucks being crewed by three drivers who operated the vehicles 24 hours a day, seven days per week, He believed that he had the same crew for the last four seasons of his engagement and the crews remained much the same from year to year. The drivers drove the same truck every year until a new truck replaced it and he believed he drove four different trucks over the 16 years he was employed by A J Mills. He said he had the same payroll number every year although it may have been changed once when a new pay clerk was employed. 11 Mr Barry Hungerford said that he was a seasonal cane driver for A J Mills at the company's Broadwater sugar mill for 12 successive seasons from 1993 up until 2005 when A J Mills lost the contract. During the course of this employment he performed various roles, including picking up bins of cane billet from cane farms and delivering them to the sugar mills. 12 When Mr Hungerford approached A J Mills for employment he spoke to Mr Kelvin Mills and he was handed over to a driver assessor to determine whether he was competent in the cane work. He was tested by the driver assessor and passed and then accepted employment with A J Mills. A J Mills trained him for approximately two days and during his first year he worked on the cane fields for approximately six and a half months. 13 At the start of each cane season Mr Kelvin Mills held a meeting with all the drivers. During the course of this meeting, Mr Mills told the drivers that if they worked well during a season the company would like them to return for the following season but if it did not work out, then the drivers would be called within 14 days of the end of the season to inform them that they were not required for the new season. They were told that if they did not receive that call then they knew the company would like them to return for the new season and Mr Kelvin Mills said this procedure was set out in the agreement. Mr Hungerford understood that if the company did not contact him then he was certain of employment with A J Mills for the next season. Mr Mills also told the drivers that it was their obligation, if they had not been told they were not wanted for the new season, to telephone the company at Easter or at the beginning of April before the new season began to let A J Mills know if they could work for that new season. The company needed to know how may drivers had accepted employment for the new season as they had to make an assessment of how many drivers would be needed for the available work. Mr Hungerford said that this was the procedure he and the other drivers followed from year to year. 14 Following the first season's work, Mr Hungerford contacted A J Mills around Easter and informed them he was available for work and then proceeded to work a new cane season with the company. At the end of that cane season he worked for A J Mills carting sweet corn. From then on he performed both the cane and sweet corn work up until A J Mills lost the contract. Mr Hungerford said therefore he was working for approximately 11 months per year for A J Mills. 15 At the end of the cane season from approximately 1995 onwards, A J Mills presented all employees with a termination notice. A J Mills paid all monies owing for the season for drivers' annual leave and rostered days off but sick leave entitlements were allowed to accumulate. Mr Hungerford understood that, because the sick leave accumulated and that A J Mills allowed the drivers who performed satisfactorily to return each year, he was a permanent employee who had secure, continuous employment with the company. 16 It was Mr Hungerford's understanding that A J Mills would never terminate anybody without reasonable grounds and he said there was a general understanding amongst the drivers, including himself, that if the job was performed properly work would be offered for the next season. It was his view that the vast majority of drivers returned to work the following season and that there were numerous drivers who had worked for the company for more than 10 years. A number of the drivers, including Mr Hungerford, had on several occasions raised the issue of long service leave with the company. 17 Mr Hungerford described the carting of cane as being "highly specialised work". It was his view that the drivers (including himself) were not fully competent to perform the work until after they had worked three or four cane seasons. The work was a "team job" and the drivers were allocated into teams of three. The team members had to be experienced and co-operate as a team and the multi-lift operation used in picking up the cane was described as "a very difficult" operation. Experienced drivers were required and it was in the company's interest to have experienced people come back for the new season. The company invested an amount of time in training employees how to perform the work and that training varied between employees so that training might occur from 2-8 days depending on the individual driver. 18 Mr Ken Bryant commenced his employment with A J Mills at the beginning of the 1981 sugar cane season and he worked every season thereafter until the end of the 2004 season. He performed this work for A J Mills at the Broadwater mill. Before being employed by A J Mills he attended an interview and was offered a position. Mr Bryant was of the view that the job required some specific skills and he was trained for approximately three days in order to learn the operation of the hydraulic lift system used to pick up and set down the bin. 19 From the beginning of his employment it was understood by all the drivers, including Mr Bryant, that unless there was a problem with their performance they would be able to work the following season. At the Broadwater mill, A J Mills was regularly short of drivers and the company therefore relied on the drivers coming back year after year. This resulted in a number of drivers at Broadwater mill being in their sixties while performing this work and a number of them working every season for over ten years. There was a fairly stable crew from year to year at the Broadwater mill with some nevertheless moving on and seeking year round work. During the season the drivers would be informed by notification from the sugar mills of the estimated last crushing day. At approximately that time A J Mills would notify the drivers what positions were available during the "slack season". Mr Hungerford noted there were limited corn work positions to perform that work near Bathurst as well as silage work at Hay and Glenn Innes. He estimated that approximately ten drivers out of approximately 42 regular drivers at the Broadwater mill would continue to work for A J Mills during the slack season. There were only limited positions available for this work and it involved being away from home for much of the time. 20 Drivers who worked during the slack season could choose not to have their annual leave and other entitlements paid at the end of the cane season. The drivers who worked on jobs during the slack season might occasionally be absent when the pre-season meetings were held. In April or May and approximately six to eight weeks before the cane season was due to start, the drivers would receive a call from A J Mills about working in the new season and advising when the pre-season meetings would be held. Mr Bryant had been driving for A J Mills for over 20 years and he understood that he had a secure position year after year and that there was a clear understanding between the drivers and A J Mills that they had secure on-going employment. 21 Evidence was given by Mr Mick Forbes, an official with the TWU since 2002, whose duties included responsibility for the North Coast region of the State with specific responsibility for representing and organising the seasonal cane haulage drivers engaged by A J Mills until 2005. Mr Forbes spoke of a number of enterprise agreements between the TWU and A J Mills covering the seasonal cane haulage drivers. An agreement entitled "Heads of Agreement" expired on 31 January 2001 and Mr Forbes noted that the terms of that agreement had been negotiated prior to him taking on his responsibilities for the union drivers. The terms of that agreement were received into evidence although the document produced by Mr Forbes was unsigned and apparently not formalised by any process within the provisions of the Industrial Relations Act . The Heads of Agreement document spoke of an enterprise agreement whereby a ten per cent increase in wages would apply on the basis of five per cent on signing the agreement, 2.5 per cent from 1 June 1999 and a further 2.5 per cent from 1 June 2000. Other provisions of the agreement were as follows: (a) a flexibility clause whereby employees could take rostered days off or rostered days off in advance or annual leave in advance or to carry out other duties where productive work was not available because of the state of the weather, a breakdown in machinery or maintenance of machinery; (b) the driving teams were to comprise of three drivers per team and each team was to be allocated a 24 hour shift per day. Driving teams were to be selected from a management approved list; (c) the hours of work provided for maximum ordinary hours not to exceed 38 per week, 76 hours per fortnight or 114 hours per three weeks or 152 hours per four weeks if averaged "over a 52 week period, eight hours per day". Certain hours were to be paid at higher rates; (d) overtime was to be payable to drivers required to work in access of eight hours per shift in circumstances specified; (e) rostered days off were to be taken in consultation with management in order to maintain the continuous running of the mill. Rostered days off could be taken in advance and on termination of employment, any outstanding or overdrawn days would be adjusted; (f) the lengths of shifts could be changed by agreement with the driving team and maximum shift hours were set over a period of 144 hours or 14 days; (g) shift change over times were to be spread with no more than three drivers starting at any one time; (h) sick leave as per clause 19 of the Transport Industry Interim (State) Award was to apply to all weekly employees with a number of specified exceptions. The sub-clause was to apply to seasonal workers engaged in transport operations associated with the raw sugar manufacturing industry. An employee could accumulate an entitlement to untaken sick leave from one sugar cane crushing season to the next season and to succeeding seasons on the basis of a specified maximum of accumulated hours per week. The accumulation entitlement to untaken sick leave applied where an employee was available for employment to commence work from the beginning of the sugar cane crushing operations at the mill or mills in connection with which he was employed and where he did commence work at that time or such later time as approved by the employer and where he continued employment until the end of the sugar crane crushing operations at those mills until such earlier time or times as approved by the employer. A person not employed for a season was not entitled to accumulate untaken sick leave; (i) meal breaks could be taken at any time but not "on route". Crib facilities were to be provided on site; (j) under the heading "Re-employment of seasonal cane drivers" the agreement provided that preference was to be given to the re-employment of seasonal drivers over new applicants provided that, at the end of each season, drivers were to sign a book to indicate their intention to work the following season, and by the end of the third week in April the drivers had to have re-confirmed such an intention. Drivers were required to attend the pre-season information meetings; (k) wages to be paid weekly by electronic funds transfer; (l) bereavement leave and compassionate leave available to weekly hire employees in relation to specified relatives up to a maximum of two days' leave on full pay; (m) leave of absence was granted for jury service with the difference between the jury allowance and the paid rate being made up by the employer; (n) maternity, paternity and adoption leave would be granted to weekly hire employees in accordance with Ch 2, Pt 4, Div 1 of the Industrial Relations Act 1996; (o) the parties agreed not to make claims for improvements in wages and conditions except where consistent with the process identified in the agreement: (p) the rates of pay were to be as set out in accordance with an attached appendix; (q) a dispute procedure was laid down including an individual grievance procedure; (r) provision was made for each driver to have responsibility to ensure that weighbridge clerks were notified of the shift change time two hours prior to a shift change; (s) under the heading "employment/termination of employment", it was provided that employment under the agreement was by the week and could be terminated by either party by the giving of one week's notice or the forfeiture of one week's wages. All new employees were subject to a three-month probationary period and could be transferred back to former position or terminated at the discretion of the management. No employee was to be terminated without counselling except for acts of wilful misconduct, malingering, pilfering, inefficiency, lagging or neglect of duty and provided warnings had been issued on two previous occasions. It was also provided that seniority of employment, ability to do the job and any other reason determined by management or the union would be considered if work declined and there was a need for reductions in the workforce; (t) casual hire could be engaged by the hour and would be paid for at a minimum of four hours for each engagement; (u) provisions were made for technological change, complying with the requirements of the company's work manual, the multi-lift operator handbook and provisions were made for the correct placement of bins and the identification of improperly placed bins. There were provisions to notify the weighbridge where estimated time of arrival of drivers could not be achieved; (v) all drivers were to undergo a medical and health assessment as defined in the company's health and medical policy; (w) at the beginning of each season drivers could nominate that a percentage of hours over 38 per week could be banked to the rostered days off accrual account. The percentage could be applied to weekly hours or weekend hours or weekday and weekend hours. The accrual would be paid on the request of the employee. 22 Mr Forbes spoke about the degree of specialist knowledge required to perform the work and the way in which the drivers had to "learn their way around the farms and operate the hydraulic system used to load and unload the bins". A J Mills trained the drivers and there was a relatively stable workforce: that situation was mutually beneficial to the company and the drivers. In recent times there had been a shortage of drivers and that had become a chronic problem for the industry but the A J Mills' drivers were able to obtain approximately six months or more employment each year. Mr Forbes could not recall any driver being dismissed and pointed out, as reflected in the enterprise agreement, that the drivers would only be dismissed if there was an issue about their conduct or the performance of the work. 23 The 2001 enterprise agreement expiring on 31 January 2004 repeated the substance of the matters covered by the previously expired agreement at the end of January 2001. The agreement was expressed to partially regulate the terms and conditions of employment provided for in the Transport Industry State Award and the agreement was to prevail to the extent of any inconsistency with the State awards. The objects of the agreement were to enhance the productivity and efficiency of the company's operations, to provide relevant professional training to transport workers, to promote job security for transport workers and to provide them with access to more varied, fulfilling and better paid jobs. Clause 6 of the agreement was headed "Commitment" and stated that, by entering into this agreement, the employer made a commitment to achieve the full-time engagement of its seasonal transport workers, to utilise full-time employees to their full capacity before casual or part-time employees were engaged or work was contracted out to other companies or businesses and that there would be training of the transport workers in occupational health and safety, fatigue management and other professional training as provided by the company. Wages continued to be paid weekly by electronic funds transfer. Clause 14 dealt with "Terms of Engagement" and stated it was seasonal work and therefore subject to the vagaries of the weather, the quality of the cane and the crushing demands of the sugar mills. Engagement would be by the week for the duration of the season and/or the availability of work except for casual hire drivers who would be engaged under the provisions of clause 16. The three-month probationary period was continued in this agreement as was the provisions for hourly hiring of casual drivers on a minimum of four hours engagement. Entitlement to the accumulation of sick leave was continued. Clause 32 provided for off-season employment and stated that an invitation to apply for off-season work would be issued to all drivers before the end of each cane season. That invitation would list all the A J Mills' areas of operation where opportunities existed for off-season work and selection of that work would be made by management, taking into account the performance, the ability to perform work in a team, relevant skills and qualification of seniority. Because of the nature and availability of off-season work, A J Mills was unable to guarantee work in these positions for the entire off-season. Clause 33 was headed "Consideration for year-round work" and provided that, where an opportunity for year-round work arose, cane drivers would be invited to apply and given first consideration by management for the position. Selection criteria was set out, including seniority. 24 According to Mr Forbes, the TWU had consistently raised the payment of long service leave for these drivers and while the company indicated that it would review the matter, the issue was not resolved. Documents sought from the company and provided to Mr Forbes and the union indicated that the company's records from 2000 showed a large number of drivers working each season until A J Mills lost the contract at the end of 2004 season. Those records did not cover the period before 2000 and there were a number of drivers who appeared to have worked some but not all of the seasons between 2000 and the end of the 2004 season. 25 Mr Michael Aird was employed by the TWU as a legal officer. He had previously been engaged by the union as an official from approximately April 1995 and from that time until the end of 1998 he was the North Coast official for the union. His responsibilities included representing members employed by A J Mills based on the North Coast of New South Wales. Mr Aird's evidence essentially dealt with issues arising in reply to the respondent's evidence. He referred to the 1996 agreement operating at A J Mills and a document entitled "Heads of Agreement" that indicated that one trade-off for a 15 per cent wage increase for the drivers was compensation for the drivers being unable to qualify for long service leave because of the seasonal nature of the their employment. Mr Aird said he was the official responsible for representing the drivers and he had the carriage of the enterprise agreement negotiations. He rejected the suggestion that there was any trade-off of drivers' rights to long service leave. The claim pursued for A J Mills' employees was the same as that pursued by the TWU across the transport industry and ultimately led to a variation of the State Award by increasing rates by 15 per cent. That increase to the award was approved by a Full Bench of the Commission. Mr Aird said that nothing more than the industry-wide claim was ever pursued with A J Mills and this was the pattern over a number of such agreements. 26 While Mr Aird was an official representing the sugar cane drivers there was an agreement with A J Mills that the drivers would be engaged from season to season and they would not have to re-apply for their jobs. The systems was that they had to advise the company they were returning for the next season and the only basis upon which a driver would not return was if they were dismissed for poor work performance. Ultimately, preference of engagement for sugar cane drivers was included in the agreement and that was a reflection of what had occurred in the company's operations. 27 The witnesses for the TWU were not cross-examined by counsel for the respondent. There was an agreement between counsel that because the evidence from both sides contained an amount of strictly inadmissible material or were in the nature of submissions, that formal objections would not be taken to that material, bearing in mind that the Court was alive to those issues. 28 Mr Kelvin Mills was a director of the respondent since 1974. He was an engineer by profession and as part of his duties with the respondent he was responsible for managing the company's maintenance workshop. His duties included responsibility for the performance of the company's sugar cane contracts and the "hiring and firing" of the staff to provide cartage work in the sugar cane industry. The company had initially commenced carting to the Condong mill approximately 30 years ago and then obtained the work for the Broadwater mill and later Harwood mill. 29 Mr Kelvin Mills said that, in the beginning, each driver would submit an application seeking employment for the next cane season and he would check the applications and contact previous employers and after carrying out various test, he would then arrange for a driving assessment to be undertaken. A short list would be prepared and he would then select a number of drivers for vacant positions. The employment was seasonal in nature and the majority of drivers were local and were familiar with the seasonal nature of the sugar cane industry. When the sugar mills announced the beginning of the crushing season, the sugar mills would also advise the company who would then advise the drivers when work was to commence. The beginning and end of the season was subject to a high degree of local knowledge. 30 Depending on the circumstances existing in the industry, the conclusion of the season would vary from year to year. Relevant factors were the weather, the amount of sugar cane to be crushed and whether the growers had decided to pull out of crushing and stand their sugar cane over to the next season. The industry in Northern New South Wales was based around a number of small country towns and the commencement and end of the crushing season was a major topic of conversation. Everyone understood the seasonal nature of the work such that non-sugar season employment was commonly referred to as the "off season" or "slack season" employment. The availability of slack season work was advertised during the cane season and the amount of available work would vary from year to year. Some drivers applied for all available work during the slack season while others would apply for a particular job. Interstate work was also available but some drivers did not chose to pursue this work. 31 While Mr Kelvin Mills was responsible for the employment of drivers for each season, he was not generally involved in negotiations for the enterprise agreements that applied to the work - that was Mr Reginald Mills' responsibility and in later years he was assisted by Ms Tracey Mills and Ms Leonie Mills. During the season, Mr Kelvin Mills had overall charge of the maintenance of the drivers and the cane vehicles' workshop and, in consultation with the operations managers at each mill, had the final say on who was employed. Generally, the process of re-employment of drivers involved the pre-season meetings. Sometimes, with the assistance of others, he would produce an agenda that included the issues raised by the operations manager, Mr Reginald Mills or Ms Tracey Mills. These matters may arise from enterprise agreement negotiations. The drivers would be given dates for the pre-season meeting but not all drivers would attend. Some drivers would be on leave or engaged elsewhere but generally the drivers would indicate whether or not they were interested in further employment. The company accepted that some drivers would not attend the pre-season meeting and their absence would not affect their re-employment for the next season. Generally, telephone apologies were accepted from drivers unable to attend the pre-season meeting. 32 On some occasions Mr Kelvin Mills chaired the pre-season meetings which were formal and were held to advise the drivers of problems that had arisen in the previous season and what had been decided to overcome the problems. Advice would be given as to any rules introduced by the sugar mills and representatives of the sugar mills would attend these pre-season meetings. The transport supervisor and the wages clerks also attended. Normally, there would be a representative from the sugar mills' safety committee and the sugar mills transport supervisor usually addressed the meetings. The pre-season meetings were held for those drivers who were to be employed for the next season. An invitation would be extended to drivers who had indicated before the end of the season that they sought re-employment for the next cane season. The cane drivers were only employed for the cane season and at the end of the season, the drivers were paid out their accrued entitlements and terminated. By the end of the season Mr Kelvin Mills would offer slack season work to the drivers who had responded to the slack season advertisement. At the end of the season, the paymaster was advised of the drivers who had been selected to perform the slack season work and the paymaster was able to keep those drivers' current details in the wages computer system. Some slack season work involved only a short period of employment and did not extend to the whole of the slack season. The drivers engaged on this work would receive their termination payment at the end of the slack season. 33 Drivers terminated at the end of each cane season would receive their termination payment and, if requested, would also receive a separation certificate. In later years it was decided to automatically distribute separation certificates to all terminated drivers whether or not they had requested such certificates. In the early days drivers who sought to be re-employed for the next cane season were required to sign their name in a book to indicate their desire for that work. Mr Kelvin Mills came to the conclusion that there was no point in continuing the book system as all the drivers were signing the book whether or not they had any intention of seeking employment and the book was no longer serving its purpose. A number of drivers, from season to season, who indicated their intention to seek re-employment for the next season did not attend for work or did not seek re-employment. Mr Kelvin Mills decided to replace the book by requiring the drivers to contact the company prior to Easter to indicate whether they were intending to seek re-employment for the next season. A list would be compiled of the drivers who made that contact and they would be notified of the times of the pre-season meetings. This system had some difficulties as a number of drivers would contact the company and advise that they intended to seek re-employment for the next season but would not attend at the beginning of the cane season. 34 Mr Kelvin Mills said that the employment of the cane drivers was for the cane season only and there was no guarantee of on-going employment from year to year. The enterprise agreement introduced preference of re-employment but the drivers were still re-employed each season. Sick leave was accrued because of the provisions of the enterprise agreement but there was still no guarantee of employment for the following season with each driver having to re-apply for re-employment each season. Some drivers would not advise of their intention to seek re-employment for the following season and in those cases, towards the end of the slack season, the company would contact those drivers and enquire whether they intended coming back for the new season. The responses from each driver in those circumstances would vary. Some drivers would be absent for a few seasons and other would work from season to season and then have a break between seasons. Some drivers would finish other jobs before starting with the company after the season had commenced. 35 Mr Bright had raised the question of long service leave at a meeting but Mr Kelvin Mills could not recall the precise terms of the discussions. He did recall Mr Reginald Mills telling the drivers that, as seasonal workers, they were not entitled to long service leave. While long service leave was from time-to-time occasionally raised with Mr Kelvin Mills, no demands were made to him and he did not regard long service leave as being a major issue - it was just one of a number of issues raised. He denied ever using the word "permanent" to refer to full-time seasonal cane drivers nor did Mr Kelvin Mills hear that term being used. Mr Kelvin Mills accepted that, unless drivers misconducted themselves in a major way, they would be re-employed for the following season but the drivers were still required to apply for that employment. Generally, if an experienced driver sought to be re-employed they would be offered re-employment in order for the company to service their contracts with the mills. He rejected the suggestion that this situation was part of an understanding between the drivers and the company that employment was on-going from season to season. 36 In cross-examination, Mr Kelvin Mills accepted that Mr Bright, Mr Bryant and Mr Hungerford performed sweet corn work or corn silage work on occasions when it was available. He agreed that the slack season was a reference to the period between the end of the sugar season one year and the beginning of the sugar season the following year. During this slack season, A J Mills had less work than the work performed during the sugar season. In recent times, approximately 34 trucks were required to service the three sugar mills but that number had been built up over the years. Outside the sugar season there was less work to be performed by mills using these trucks. During the slack season, the trucks would be parked at the company's Murwillumbah depot. They would not be used while sitting in the yard and could be de-registered for that period. Other trucks could be used for corn silage and sweet corn work, although at times that work could be generally less intensive than the sugar work but nevertheless there were periods when the sweet corn work and corn silage work, for a period of time and depending on the season, could require work over twenty-four hours, seven days per week. During the slack season the mills did not have the demand for driver labour that it had during the sugar season. A reason for the cane drivers not being employed during the slack season was because there was no work to be performed and in some cases, drivers did not wish to perform that work because it involved going out of the area. 37 When Mr Kelvin Mills spoke about the drivers submitting an application for the next cane season, there was a written application only for the first employment and that did not have to be filled out for every subsequent season but a verbal application would be made. For a period, drivers who wished to be re-employed for the next season were required to sign the book. Mr Kelvin Mills agreed that a driver who indicated his intention to seek the work in approximately April the following year would be given the work as a matter of course unless he had been told earlier that his performance was unsatisfactory An existing driver, found not to be incompetent or unsatisfactory, would come back the next year. Where there was the rare occasion of an overlap between seasons, then those who were working in the off-season continued to accrue entitlements such as annual leave. However, most of the time, at the end of the cane season, there would be a gap between seasons and over the Christmas period the drivers would be terminated and paid out their leave entitlements. There was a time when an arrangement was entered into, on a case by case basis, where the drivers would request A J Mills to hold their holiday pay so that they could claim it when they were away, during the slack season or if there was no work. 38 Mr Reginald Mills had been a director of the company since 1974. He described the company as a road transport service with a fleet of approximately 160 "units" and operating along the Eastern seaboard of Australia. In approximately 1973, A J Mills successfully tendered for a contract with CSR Ltd for the cartage of harvested sugar cane from selected farms to the raw sugar mill at Condong in northern New South Wales. That contract continued, including with new mill owners, and ran for the sugar cane crushing season from approximately July to December each year. The company was unsuccessful in its 2005 season tender to retain the sugar cane cartage contract and in approximately December 2004, ceased to provide services under the sugar cane cartage contract. On the cessation of the sugar cane cartage contract, the drivers employed to service that contract were terminated apart from one driver who was contracted to carry bulk sugar until June 2005. 39 Mr Reginald Mills was involved in the negotiation of enterprise bargaining agreements for the sugar cane drivers. The negotiations were conducted by an enterprise bargaining agreement committee and minutes would be taken of the meetings of that committee. Minutes were circulated to members of the committee and once an agreement was negotiated, a Heads of Agreement would be prepared and then submitted to the Industrial Commission for approval. Mr Reginald Mills said he was involved in the negotiations for each of the agreements with the TWU covering the sugar cane drivers delivering to the Harwood, Condong and Broadwater mills. In particular, he was involved in the 1996 negotiations for a new enterprise agreement. In July 1996 he wrote to the cane transport management team of the New South Wales Sugar Milling Co-Operative Ltd and advised that the company had finalised their enterprise agreement negotiations with the cane drivers and the TWU. Rates were increased by 6 per cent on the award from 16 October 1995, 12 per cent from the award from 4 August 1996 and 15 per cent on the award from 16 November 1996. His letters refer to "trade-offs" being set out in an attached document entitled "Heads of agreement - Transport Workers Union of Australia, New South Wales branch and A J Mills & Sons Pty Ltd Seasonal Cane Transport Drivers and Begasse Drivers at Harwood, Condong and Broadwater". That agreement noted that the employer agreed to pay 15 per cent above the current minimum award rates by way of an enterprise agreement in three movements, 6 per cent from 16 October 1995, 5 per cent from 3 August 1996 and 3 per cent from November 1996. A number of productivity trade-offs were listed including the following: * because seasonal employment contract the inability for drivers to claim redundancy pay; * because of seasonal employment lack of qualifications for long service leave. 40 In September 1984, the TWU notified the Industrial Commission of a threatened dispute involving seasonal workers in the sugar cane industry employed under the Transport Industry (State) Award. The dispute related to seasonal workers employed by A J Mills at the Condong and Broadwater mills and another transport operator. The TWU's letter notifying the dispute stated that there were 93 TWU members involved, 60 of whom were employed by A J Mills. The dispute arose over three issues, the third issue involving long service leave and seeking that clause 24 of the award be amended to provide as follows: Part-time seasonal employees working in or in connection with the sugar cane industry shall be entitled to the NSW Long Service Leave Act provisions as though their employment was continuous and unbroken, provided they are so engaged each sugar season. The dispute notification stated that many of the employees concerned had now worked for 10 or 11 years as "seasonal employees" and were angry that the employers would not agree to their claims. 41 During late 1984 and into 1985, the TWU's dispute notification and application to vary the award was the subject of compulsory conferences and hearings before the Commission. Threshold arguments were raised in February 1985 and the TWU was granted an adjournment in order to obtain legal advice on the issues raised. The parties were to continue their negotiations and the matter was to be re-listed when the TWU was in a position to do so. As a result of the continued discussions, agreement was reached in relation to sick leave and the award clause was varied but the matter was not listed again in relation to long service leave and the TWU did not pursue that matter. Mr Reginald Mills pointed out that was the background to the 1996 Heads of Agreement. 42 In 1992, the contract between A J Mills and the sugar co-operative provided that the terms and conditions of the contract were for the duration of the 1992, 1993, 1994 and 1995 crushing season. To fulfil these contractual obligations A J Mills employed seasonal sugar cane truck drivers and did so for the sugar cane season which usually ran yearly for 26 weeks from June to December. That seasonal employment of the drivers was terminated at the end of the sugar season with A J Mills paying out all accrued entitlements such as annual leave. Towards the end of each sugar cane season, usually October or November, A J Mills circulated an application to its drivers who may be interested in working in the off-season between January and May each year. Some drivers would apply for, and obtain, off -season work with A J Mills and those drivers had the option of either being paid out their accrued entitlements on termination in December, or continue to accrue their existing entitlements from the sugar cane season through the off-season. 43 Mr Reginald Mills spoke of the process for obtaining work during the sugar cane season. He stated that all drivers, prior to the commencement of each sugar cane season, were required to apply in January for new employment with A J Mills but there was no guarantee of securing employment. Prior to the commencement of each new sugar cane season, A J Mills would hold meetings with the drivers at each mill to discuss various issues relevant to that season. These meetings were advertised as pre-season meetings. 44 In late 2003, negotiations commenced with the TWU to replace the 2001 enterprise agreement. Although those negotiations were not concluded because A J Mills lost the contract, the union proposed a list of issues to be discussed including "pro rata for long service". During the discussions held, Mr Reginald Mills informed the TWU representatives that there was no obligation to pay long service leave. 45 The company terminated the employment of all sugar cane drivers at the conclusion of the season other than those who had secured employment with the company during the off-season. This season was commonly referred to as the "slack" season and drivers who obtained employment for the sweet corn season or as corn silage drivers would continue working but there could be a gap between the two seasons. If a gap occurred, the drivers were offered the option of applying for annual leave or accrued rostered days off until the commencement of the next period of employment. Drivers who did not take up slack season work received a termination payslip as well as being provided with a separation certificate. The company operated in divisions so that those engaged on season sugar cane transport were referred to as cane drivers, while those employed for the sweet corn season were referred to as "sweet corn drivers". Drivers employed for corn silage work were referred to as "corn silage drivers". 46 The accrual of sick leave from year to year was the result of a consent award variation that occurred in October 1986. Mr Reginald Mills said that the variation was designed to overcome difficulties caused by the seasonal nature of the employment and in particular, to overcome the requirement of three months' employment as a qualification for sick leave at the commencement of seasonal employment. The variation had nothing to do with permanent employment. Mr Reginald Mills was not aware that Mr Bright had raised the question of long service leave but he did recall some staff had enquired about long service leave. When that occurred, his response was to remind them that the union had taken up the issue with the Industrial Commission and no ruling had been made and because they were seasonal employees, they had no entitlements under the Long Service Leave Act. In relation to Mr Barry Hungerford's statement, Mr Reginald Mills denied that he ever referred to the drivers as "permanent casuals". 47 In cross-examination, Mr Reginald Mills said that he did not have any recollection of the work patterns of the drivers but he understood that some drivers did not want to perform off-season work because they did not wish to travel away. At the conclusion of the sugar season, the payment out of annual leave would be at the drivers' election and that would not involve termination where the driver secured off-seasonal work. The 1984/1985 dispute in the Industrial Commission did not confirm for A J Mills that long service leave was not available for the cane drivers because A J Mills had always been of that view. Nothing was done by the TWU that induced A J Mills to continue with that position because A J Mills was always opposed to the payment of long service leave because, in their view, the drivers did not qualify. Mr Reginald Mills was aware that, later in 1985, the Long Service Leave Act was amended but he was not aware of the reasons why the TWU did not proceed with its long service leave claim in the 1984 dispute proceedings. 48 In relation to the 1996 enterprise agreement, it was put to Mr Reginald Mills that no registered agreement was ever entered into and in fact, events were overtaken by a variation to the Industry Award that implemented a 15 per cent increase. Mr Reginald Mills was unable to answer that question. He was aware of the negotiations, that they took some time and that in late 1995, A J Mills gave an interim increase but did not agree on the Heads of Agreement until July 1996. He could not say, however, whether or not the enterprise agreement was registered. The document was prepared at the end of negotiations to form the Heads of Agreement but Mr Reginald Mills could not recall whether it was signed off. He assumed that, if it was contained in the document, the question of long service leave was discussed. When it was put to him that he had no independent recollection that long service leave was ever discussed in any negotiations with the TWU, Mr Reginald Mills said that long service leave was raised on a number of occasions, particularly at the enterprise agreement negotiations and his normal response was that the matter had stopped when it had been referred to the Industrial Court and that was a reference to the 1984 dispute proceedings. He could not recall by independent recollection whether long service leave was actually discussed at the 1996 negotiations. It was put to him that neither the TWU nor the drivers pressed a lack of entitlement to long service leave as the basis of a pay increase. Mr Mills replied that was not specifically put but it was part of the overall package. He agreed that there was no value assigned to that matter in calculating the increase to be paid. He could have prepared the document but he could not recall if he did so and could not say whether it was prepared by someone from A J Mills or the TWU. In re-examination, Mr Mills stated that the 15 per cent increase was paid in 1996 and that agreement was reached in July 1996 and involved some back payment although an interim increase had been granted. The other conditions set out in the Heads of Agreement were also provided to the drivers. 49 Ms Tracey Mills had been employed by the company since January 1999 and in 2006 was appointed a director. Ms Mills spoke about the company's work at the three mills in northern New South Wales and that each season had a slightly variable start and finish date. In each season, the company employed truck drivers to drive the specialised fleet of multi-lift trailers to transport the harvested sugar cane billets from the fields for processing. During the sugar cane season, the mills operated twenty-fours a day, seven days per week and the company's trucks were manned by a team of three drivers also working around the clock. She noted that, each season, many of the drivers returned to drive for the company during the sugar cane season. It was her experience that it suited many of the drivers to only work six months of the year driving for the company. Some drivers had other business interests such as farming, a bus run, a shop or postal run and thus, six months' work provided them with a good financial "injection" but did not take them away from their work for the full year. Other drivers enjoyed the six months off work between January and May each year and used the break to undertake travel or to build their homes. Some drivers found other local work in the off-season and A J Mills was able to offer some driving work at Bathurst during the sweet corn harvest or in western Queensland during the corn silage season. There was also interstate driving, depot deliveries or workshop maintenance. From year to year there were numerous variations to the drivers' work patterns. 50 Between 1999 and 2004, one of Ms Mills' responsibilities was to participate in the negotiation and management of the haulage contracts between A J Mills and the New South Wales sugar milling co-operative. This also involved negotiating the enterprise agreements with the TWU and driver representatives. The company was also represented in these negotiations by Mr Reginald and Mr Kelvin Mills. 51 Ms Mills participated in the negotiation of concluded enterprise agreements in 1999 and 2001 and noted that, during those negotiations, the drivers were represented by four different TWU officials, including Mr Forbes. During discussions for the 1999 enterprise agreement, Ms Mills did not recall the TWU raising any issue of long service leave entitlements. Ms Mills also participated in discussions for the 2000 agreement and in August 2000 prepared minutes for the first committee meeting. The claims presented by the TWU on behalf of the drivers did not include any claim for long service leave. In 2003, the TWU's claim for a new enterprise agreement included a claim for pro rata long service leave. At the first meeting to discuss the new agreement, Mr Reginald Mills told the TWU that the company believed that, as the sugar cane workers were seasonal workers, there was no legal obligation to pay long service leave but in the interests of conciliation they would look at the cost of accruing and paying long service leave. In a meeting in November of the enterprise bargaining committee, Mr Forbes stated that the TWU was going to make a claim for long service leave under the Long Service Leave Act rather than pursue a pro rata entitlement in the enterprise agreement. 52 In her experience, Ms Mills stated that the term "permanent seasonal workers" was not used by the company in relation to its drivers but they were referred to and described as cane drivers. Drivers engaged for the sweet corn season were referred to as sweet corn drivers and sometimes those who drove the multi-lift vehicle in the sugar, corn and silage divisions of the business were referred to as multi-lift drivers. Ms Mills noted that sick leave and public holiday pay accrued for cane drivers employed "on a full-time basis within the sugar season" and this was the result of award variations but was not as a result of their general employment arrangement. A J Mills was structured along divisional lines with a cane, sweet corn and interstate divisions. The only ongoing employment occurred when seasonal drivers secured other seasonal work in another division of the company. When that occurred, the employment did not terminate at the conclusion of the season but the drivers would commence work for another division of A J Mills. At the end of the cane season, unless off-season work was arranged, the cane drivers would receive a termination payment and payslips containing all accrued entitlements which would be paid out and they would be also be issued with a separation certificate. 53 In cross-examination, Ms Mills agreed that the company had only cursorily examined the claims for long service made by Mr Bright, Mr Hungerford and Mr Bryant. The company had asked for an application from the TWU on behalf of the members and the grounds upon which an entitlement to long service leave arose but no application was received that could be entertained by the company. The cursory examination conducted by the company indicated that the three drivers may not have long service leave entitlements. The company looked at the employment records that were available but much of the records requiring detailed examination were archived. The company was loathe to go to the expense of undertaking that task for every driver and was seeking from the TWU a list of names to narrow down the scope of the exercise. As seasonal employees, the records were "patchy". Ms Mills did not have personal familiarity with Mr Bright, Mr Hungerford or Mr Bryant or their work and off-season work. The trucks used for sugar cane cartage were semi-trailers with a separate prime mover hauling the trailer containing the multi-lift mechanism. Those trailers were suitable for sugar cane and also sweet corn work during the off-season and some silage harvesting but they were only suited for a narrow range of work. Approximately 30 trucks were used to service the sugar cartage contract over the season and during the off-season, a number of the trucks were de-registered and kept in the Murwillumbah yard. Ms Mills confirmed that the interstate general freight division was a separate operation with a separate pool of labour and was not inter-mingled with the work performed by the sugar cane drivers. 54 In relation to the 1999 enterprise agreement, clause 23 dealt with re-employment of seasonal drivers and gave preference to existing drivers who had indicated their intention to work the following season. Ms Mills agreed that clause broadly encapsulated what had been the previous process in relation to re-employment. The drivers who had previously worked and indicated an intention to be re-employed the following season would be re-employed provided they had not been notified at the end of the season of unsatisfactory performance and that work was obtainable so long as there were positions available for the next season. Ms Mills understood that for Mr Bright, Mr Hungerford and Mr Bryant, from their initial engagement to A J Mills losing the sugar cane contract, there was no occasion when a position was not available for them in the sugar cane season. She also understood that Mr Bright, Mr Hungerford and Mr Bryant were weekly employees and that was laid down in the enterprise agreement and while it held the sugar cane contract, reflected the existing practice applied by A J Mills 55 The evidence then needs to be considered against the provisions of the Long Service Leave Act 1955. The parties agreed that no claim was pressed for any service rendered prior to 1985 when the provisions of the Act were widened to entitle, for example, casual employees to obtain long service leave benefits. In light of the submissions made by the parties, the following provisions of the Long Service Leave Act are the primary focus for the purpose of this application: LONG SERVICE LEAVE ACT "Worker" means person employed, whether on salary or wages or piecework rates, or as a member of a buttygang, and the fact that a person is working under a contract for labour only, or substantially for labour only, or as lessee of any tools or other implements of production, or as an outworker, or is working as a salesman, canvasser, collector, commercial traveller, insurance agent, or in any other capacity in which the person is paid wholly or partly by commission shall not in itself prevent such person being held to be a worker but does not include a person who is a worker within the meaning of the Long Service Leave (Metalliferous Mining Industry) Act 1963 . ... 4 Long service leave (1) Except as otherwise provided in this Act, every worker shall be entitled to long service leave on ordinary pay in respect of the service of the worker with an employer . Service with the employer before the commencement of this Act as well as service with the employer after such commencement shall be taken into account for the purposes of this section. ... (11) For the purposes of this section: (a) service of a worker with an employer means continuous service, whether on a permanent, casual, part-time or any other basis, under one or more contracts of employment; (a1) the service of a worker with an employer shall be deemed to be continuous notwithstanding that the service has been broken by reason only of an interruption or determination thereof: (i) caused by the absence of the worker under the terms of the worker 's employment; (ii) caused by the absence of the worker on account of illness or injury; (iii) made by the employer with the intention of avoiding any obligation imposed on the employer by this Act or by any obligation in relation to sick leave imposed on the employer by a State industrial instrument; (iv) arising directly or indirectly from an industrial dispute; (v) made by the employer by reason of slackness of trade, (vi) arising from the absence of the worker for any cause by leave of the employer , or (vii) caused by the employer for any reason other than those referred to in subparagraphs (iii)-(v) where the worker returns to the service of, or is re-employed by, the employer within 2 months of the date on which the service was interrupted or determined, but the period during which the service is so interrupted or determined shall not in the circumstances referred to in subparagraphs (iii)-(vii), by reason only of this paragraph, be taken into account in calculating the period of service. 56 As an aid to construction of the legislation, the Second Reading Speech in the Lower House and in the Legislative Council was tendered. In the Legislative Assembly, the Minister for Industrial Relations, Mr P Hills, delivered the Second Reading Speech and in the Legislative Council the Second Reading Speech was delivered by the Hon B J Unsworth, Minister for Transport and Vice-President of the Executive Council. Not surprisingly, the substance of the speech in both places was the same except that in the Legislative Council Mr Unsworth, in making his speech in reply on the Second Reading of the Bill, dealt with questions raised by members of the Opposition. 57 The Second Reading Speech of the Minister for Industrial Relations, Mr P Hills, was in the following terms: LONG SERVICE LEAVE (AMENDMENT) BILL This bill proposes to amend the existing Long Service Leave Act to update workers' long service leave entitlement. The Long Service Leave Act was originally introduced in 1955 to grant leave for long service generally throughout the State. The Act, with some amendments, has not been in force for almost thirty years. Consequently, I established a committee of inquiry to review the Act and its operation to ensure that the provisions of the Act kept pace with current developments in the work force. This committee reviewed the position and made recommendations in respect of certain anomalies that have occurred. Three of the proposals have been included in this bill. ... The third proposal will provide that long service leave is earned for continuous service rather than on the present requirement that bases entitlement on an "unbroken contract of employment". ... The Long Service Leave Act presently provides that long service is earned on the basis of an unbroken contract of employment. This has been a continual problem in respect of long service leave entitlement because it has acted against the interests of casual employees, many of whom have been continuously employed for periods in excess of ten years but whose contract of employment is deemed to be terminated each time they are paid. This amendment will ensure that legal technicalities cannot deprive a worker from a just entitlement to long service leave. It will ensure that so long as the worker has worked continuously for an employer for the qualifying period, the worker will receive a long service leave entitlement, regardless of whether that worker was employed on a permanent, casual, part-time or any other basis, and whether or not under one or more contracts of employment. ... The object of this bill is - ... (3) to provide that the basis of entitlement to long service leave shall be the continuous service of a worker under one or more contracts of employment instead of service under an unbroken contract of employment (Schedule 1(1)(i) and (j)). 58 In the Legislative Council, the Hon B J Unsworth, speaking in reply on the Second Reading, stated as follows: ... The other point the honourable member made was similar to the one made by the Hon Sir Adrian Solomons, and that was about continuous service. It must be understood that over the years there have been cases about the long service leave entitlements of casual workers. Many people in the work force are employed as casuals. The bill recognises that some persons are employed on a permanent, casual, part-time or other basis, and many of those who are employed as casual are in effect permanent casuals. The case to which I refer is Neil v Cameron which is reported in 1977 Arbitration Reports at 505. In that case the Industrial Commission held that a worker was employed as a casual employee on terms prescribed by the Shop Employees (State) Award. It found, however, that the award was silent on the question of termination of employment of casual employees. The worker's casual employment came to an end at the end of each week when she was paid, which pay included the annual holiday loading and a new period of casual employment commenced at the beginning of the following period. In these circumstances the worker could not prove that she had served the employer under an unbroken contract of employment for a period that would have entitled her to long service leave. The bill will cater for such employees who are in effect permanent casuals but by virtue of the technical termination of their employment on each pay day could not qualify for long service leave. I had personal experience of this when I was managing director of radio station 2KY. A person used to give tips on racing prospects each Saturday morning. That person was only employed for about two hours, offering advice to punters. The advice was of an ongoing nature and was given for many years. When that person's employment with the broadcasting station was terminated, he sought long service leave. I did not think it was appropriate that he should be paid long service leave because of the casual nature of his employment and I sought to test the matter before the Industrial Magistrate. I lost the case and the tipster was awarded long service leave. Though I might have lost the case, I gained the decision for the benefit of other people who were under a similar contract of employment. The Magistrate held that that employment, even though it was of short duration each Saturday morning, was continuous and therefore the employee was entitled to long service leave. ... He may well have worked for another employer; the fact is he worked for radio station 2KY every Saturday for about seventeen years. It was held that he was entitled to long service leave. These measures will put that matter beyond issue. Persons who are employed in casual employment continuously will be entitled to long service leave. However, those employees will receive a proportionate entitlement based on their earnings. The case with which I was involved concerned an employee working for two hours a week. The employee would receive long service leave based on that entitlement. Long service leave payments are relevant to the employee's overall earnings. ... 59 Prior to the 1995 amendment continuity of service, for the purposes of the Long Service Leave Act, was not broken by the taking of annual leave or permissible sick leave. Unpaid sick leave and time on workers compensation was generally counted as part of service. In the case of lengthy absences, the contract was not considered to be terminated unless the absence was of such a nature as to go to the root of the contract. In dealing with the provisions of Metal Trades (Long Service Leave) Award 1964 , the Commonwealth Industrial Court ( Dunphy and Joske JJ) [1967] 13 FLR 42, noted that absences recorded by the employer did not operate to interrupt the continuity of service in the absence of evidence showing that the employer had terminated the employment because the leave was unauthorised. DELIBERATION 60 From the evidence the following matters are established. The work of the sugar cane drivers was seasonal, performed over six or seven months of the year as a reflection of the vagaries of seasonal work. The work was intensive, involving a team approach in a system that operated three shifts per day, seven days per week for most of the season. The operation of the trailer and the bin mechanism and the requirements of the three mills serviced under the company's contract required a certain amount of training before the work could be competently and efficiently performed. It was in the interest of the company to have trained and experienced drivers return to work the following season after their initial training. A system evolved whereby, before the close of the season, those who wished to take up that employment for the next season signed a book indicating their willingness to work the following season. That work was invariably provided for those who wanted it and only lack of performance or misconduct would exclude a driver from taking up work in the following season: there was an expectation held by both the drivers and A J Mills that the drivers would work season to season. Under this system, there was a sizeable pool of drivers performing the cane work who regularly worked season after season. A much smaller number of drivers could be provided with "off-season" or "slack season" work, but there was usually some break between the cane work and the off-season work involving sweet corn or corn silage work. The expectation that work would be available for drivers in the following season was given some formal recognition in the 1999 and 2001 enterprise agreement where it was provided that, in the new season, preference of employment would be given to drivers who had worked the previous season. This provision was a reflection of the agreement with the TWU that drivers would be engaged season to season without having to re-apply for the work. 61 The evidence also establishes that, at the end of the season, a practice emerged of providing the cane drivers with a notice of termination and a separation slip paying out their accumulated annual holidays and rostered days off. The evidence does not allow a determination to be made as to precisely when this practice arose but it was in operation by the time the company lost the cane contract for the 2005 season. Drivers who were taking up off-season work could elect not to be paid out and wait for those entitlements to be paid at the end of the off-season work or at some other mutually agreeable time. The evidence also supports a finding that drivers (on a case by case approach) could ask that they not be paid annual holidays or accrued entitlements until some other suitable time. It is also of some relevance that accumulated sick leave was carried over from season to season. By operation of the enterprise agreement, another relevant factor is that regular cane season drivers were weekly employees and a distinction was drawn between their work and the work of casuals who were called in from time-to-time as required. That combination of provisions suggests that the payment out of annual leave at the end of the season was not so much a formal termination of employment as an administrative act to record their annual leave entitlements and make adjustments regarding rostered days off. This allowed the drivers to make any particular arrangements if they wished to have those annual benefits retained in the hands of the company and not paid out until a later date. That conclusion is further supported by the fact that sick leave was accumulated and carried over from season to season, and the finding that there was an expectation that the work would be available in the new season for those who had worked the previous season. That was the reality of the arrangements that governed the employment of the seasonal cane drivers. 62 The evidence also establishes that, although the company operated in a number of divisions, the cane season work was a very large proportion of the overall business of the company and in particular the division under which seasonal work was performed. During the cane season up to 34 trucks and trailers were in operation but during the off-season, a large number of the vehicles would be de-registered and parked at the Murwillumbah yard. 63 It is against these factual findings that an assessment has to be made whether the three drivers qualified for the payment of long service leave upon the termination of their employment in circumstances where the company failed in its tender for the 2005 cane season. In the course of submissions the Court has been directed to a number of cases and a number of them are referred to later in the judgment. Ultimately, few of them bear directly on the questions that arise in the present application, and a number of those decisions also deal with similar but materially different legislative provisions for the granting of long service leave. The focus of this case is the claim that long service leave entitlements arose because these cane drivers rendered continuous service under one or more contracts of employment with any interruption or termination of that employment caused by: (a) the absence of the worker under the terms of the worker's employment; or (b) the slackness of trade; or (c) the absence of the worker for any cause by leave of the employer. These grounds reflect the provisions of s 4(11)(a), (a1)(i), (v) and (vi) of the Long Service Leave Act as amended. 64 Before dealing with the particular matter before the Court, it is convenient to make some general remarks about the nature of long service leave. The Long Service Leave Act 1955 is described as an Act to make provisions entitling workers to long service leave; to amend the Industrial Arbitration Act 1940 and for purposes connected therewith. On the introduction of the Long Service Leave Bill in Victoria in 1953, the responsible Minister described the purpose of long service leave as being "a period of rest for the employee, so that he might recuperate after a long period of continuous service". It has otherwise been described as having the purpose of providing a rest to employees to re-energise and recuperate after many years of loyal service to an employer. These general descriptions were encapsulated in the statement of Hungerford J in Kaal Australia Pty Ltd v Federated Clerks' Union of Australia (2001) 103 IR 344 where his Honour said at [26] when rejecting a proposal for payment in lieu of leave on the basis that it was contrary to the fundamental and inherent purpose of the Long Service Leave Act, namely being a period of paid leave for long service. 65 The Law Book Company's Industrial Arbitration Service recorded that, prior to 1951, no provision for long service leave was contained in the majority of Federal awards in New South Wales and such leave was principally confined to employees of the Crown and those in government or semi-governmental instrumentalities. In 1938 within New South Wales, the jurisdictional issue had been clarified by the decision in Re Engine Drivers (South Maitland Railways Ltd) Conciliation Committee [1938] AR (NSW) 276 where it was held that a claim for long service leave was an industrial matter within the meaning of the Industrial Arbitration Act although long service leave provisions in awards was rare. In 1951, s 88C was inserted in the Industrial Arbitration Act whereby the Industrial Commission or a Conciliation Committee was required, upon application, to provide in an award a period of three months' long service leave after 20 years' service and for proportionate leave after ten years' service in certain circumstances and so long service leave was extended to award workers. 66 It was not until 1955 that the Long Service Leave Act was passed in New South Wales and applied to all workers whether employed under an award or not. In 1951, the Industrial Commission decided that casual employees were not continuously employed under an unbroken contract of service and were therefore outside the operation of the Act (see In Re Storemen and Packers, etc Award [1951] AR (NSW) 527 at 557). However, in Re Butchers Wholesale (Cumberland) Award [1953] AR (NSW) 738 the Commission thought it proper to award long service leave to a special group of "regular casuals". Earlier, in Re Storemen and Packers etc Award it had been decided that the word "service" referred to in s 88C of the Industrial Arbitration Act meant "full-time continuous service" and part-time employees were outside the section. The Law Book Company's Industrial Arbitration Service noted that, at the time, this decision would also appear to be applicable to the Long Service Leave Act. Under the Long Service Leave Act the amount of leave to be granted required the qualifying period to be a period of "service" namely, the period during which a worker served his employer under an unbroken contract of employment. At this early stage, certain interruptions or determinations of the contract of employment were deemed not to have broken the service and those circumstances were identified to arise where the determination had been made by the employer with the intention of avoiding obligations imposed under the Act or under an award, or where the interruption had directly or indirectly arisen from an industrial dispute or where it had been made by the employer by reason of slackness of trade. Special provision was also made for transmissions of business. 67 Apart from these general provisions regarding long service leave, there were also special legislative provisions introduced such as the Building and Construction Industry Long Service Payments Act 1974. That Act established a scheme to give long service benefits to what may be appropriately described as itinerant workers in the building and construction industry. The scheme proceeded on the basis of service in the industry rather than with an employer and all such service accrued so as to allow portable long service benefits. Continuity of industry service was broken when a worker was absent from the industry for twelve months. The scheme under this Act also contemplated the scheme established under the Long Service Leave Act 1955. Interestingly, portability of service had been recognised in the Coal Mining Industry Long Service Leave Act 1950 and in complementary Federal legislation. The portability schemes so developed inevitably focused attention on other forms of employment, such as part-time and casual work. That is at least part of the background to the 1985 amendments (excluding, of course, the 1974 Act) and the recognition by government of the social desirability of liberalising entitlements to this category of leave having regard to the changing ways in which work was being performed. 68 The question then arises: what was intended by the 1985 amendments? The responsible Minister in his Second Reading Speech spoke of establishing a committee of inquiry to review the Long Service Leave Act and its operation to ensure that the Act had kept pace with current developments in the workforce. The Minister accepted a number of proposals made by the committee, including a proposal that long service leave could be earned for continuous service rather than based on an entitlement arising from an "unbroken contract of employment". The requirement to establish a "unbroken contract of employment" was said to have raised continual problems in respect of long service leave entitlements because it acted against the interest of casual employees, many of whom had been continuously employed for periods in excess of ten years but their contract of employment was deemed to have been terminated each time they were paid. It was said that the amendment would ensure that "legal technicalities" could not deprive a worker from a just entitlement to long service leave and that so long as a worker was continuously employed for the qualifying period, the worker would receive long service leave entitlements regardless of whether that worker was employed on a permanent, casual, part-time or any other basis and whether or not under one or more contracts of employment. In essence, the 1985 amendments shifted the focus from establishing an unbroken contract of employment to establishing the fact of continuous employment, no matter whether under one or more contracts of employment. 69 It can be seen from the earlier discussion that, initially, there were concerns about the eligibility of casuals and part-time employees to qualify for long service leave. Numerous cases, however, demonstrated that persons described as "casuals" were in fact employed under the one contract of employment at particular intervals suitable to the employer and the employee. The concept of "permanent casuals" had some currency in certain industries (see the 1938 Butchers' case supra) and in more recent times had particular relevance for the nursing industry. The widespread use of "casual" employees engaged on a continuing, on-going basis was particularly revealed in the recent Secure Employment Test Case (2005) 150 IR 357. 70 In construing the provisions of the legislation, the question arises as to whether the intention of the legislature by introducing the 1985 amendments was, inter alia, to simply address the position of those casuals who were in fact continuously employed, often over a long period of time but paid as casuals on the legal theory that the engagement concluded at the end of each day. Often that payment was made, inclusive of penalties, to reflect the inability to qualify for such entitlements as sick leave and annual leave. Clearly, so long as the Long Service Leave Act required these workers to demonstrate employment under an unbroken contract of employment to accrue an entitlement to long service leave, few could do so. The broad terms of the 1985 amendment do not support a limited approach confining the new provisions to what have been called "permanent casuals" or those in week in, week out employment: the language of the amendment is wide and intractable (to use a well understood description). The "service" can be permanent, casual, part-time or on any other basis and may be rendered under "one or more contracts of employment". This provision, drafted in such terms, is not able to be restricted to part-time or casual employment that is almost indistinguishable from full-time employment. By its very nature "casual" and "part-time" work includes work performed from time to time - a part-time or casual employee may render service for a small number of hours per week or over a longer period. When this occurs and when such service is rendered under one or more contract of employment, the question arises how wide the legislature intended this provision to operate. It could not have been contemplated that truly casual, sporadic service would not qualify. Having abandoned the "one unbroken contract of employment" test, "continuous" service became the primary qualification for long service leave but a number of exceptions operate to deem service that is interrupted or is the subject of determination, to also qualify. Section 4(11)(a1) sets out what type of interrupted or determined service will nevertheless qualify the long service leave. On this approach, much of the evidence regarding the company's practice in terminating employment at the end of the cane season and issuing separation slips while paying out accrued annual leave, is not particularly relevant to the issue of whether or not the cane drivers are eligible for long service leave. Despite the existence of a number of contracts of employment (if that position is shown to exist), they may be eligible if the service is "continuous" or "deemed" to be continuous. 71 As indicated in the Second Reading Speeches and shown by reported decisions, work described as "casual" prior to the 1985 amendments was able to qualify for long service leave when, nevertheless, the work was performed under an unbroken contract of employment. Thus, in 1982 in Robinson v New South Wales National Coursing Association Ltd (1982) 3 IR 161, the Chief Industrial Magistrate was able to conclude that Mr Robinson was employed as a steward over a period of 33 years pursuant to one unbroken contract of employment as referred to in s 4(11)(a) of the Long Service Leave Act. Mr Robinson had commenced employment in 1947 as an assistant betting steward and carried out that duty for approximately six to nine months and attended every race meeting and then accepted an offer to take over the position as identification steward. The role of the identification steward was an important one and Mr Robinson's name appeared in the race book as holding that position. The Chief Industrial Magistrate considered that to be an important factor, being more consistent with a continuing contract of employment than showing that Mr Robinson was engaged on each occasion when he offered himself for work. He knew when to attend a race meeting from a list or card that showed all the meetings to be conducted by the respondent over the period of a year and initially that was for approximately 24 meetings per year but in later years and in 1980, the respondent conducted approximately 42 meetings per year. He had another job and when he was absent on annual leave from that position and unable to perform his job as a steward for the respondent, he organised another person to fill in for him. Mr Robinson was paid on each occasion he arrived at the course but the Chief Industrial Magistrate was not able to find that he was paid, in that amount, pro rata annual leave thus raising an inference that the contract was for each night's work. 72 Having regard to the evidence, Mr Robinson's employment might have been more appropriately described as "part-time", but cases of this nature highlight an important facet of the operation of the Long Service Leave Act namely, that the work does not have to be performed day in and day out (as with a five-day worker with the weekend off) in order to be continuous work. The work of Mr Robinson was held to be provided under an unbroken contract of employment although he had another significant position and that his duties as a steward occupied approximately 24 to 42 days of the year over a long period of time. This is consistent with the examples referred to by the Honourable B J Unsworth in the Second Reading Speech on the 1985 amendment. The importance of that history is that it cannot be accepted that, by liberalising the availability of long service leave in 1985, the legislature somehow turned its back on cases such as Robinson and on the one hand liberalised the availability of long service leave, yet on the other introduced a stricture requiring the equivalent of full-time work to be performed before casuals and part-timers could qualify for long service leave. It would be anomalous for a person working only 40 days per year when the work was available to be able to access long service leave but to regard six or seven months of continuous work, five to seven days per week, as somehow constituting a situation not envisaged by the legislature and not being able to qualify for long service leave. 73 It is a mistake, therefore, to approach the legislation on the basis of identifying classes of work that are excluded: there is no utility in declaring that "seasonal" work is or is not covered by the Act. Every case needs to be considered on its own merits and the particular features of the employment involved. In years gone by it may have been thought that "casual" work was excluded from the benefits of long service leave until emerging work patterns showed work described as "casual" was in fact ongoing employment under an unbroken contract of employment. Following the 1985 amendments with the broadening of the work caught by the Act (and as required by the pre-1985 provisions), the focus is on the true nature of the employment and whether it can be brought within the various provisions, including the deeming provisions. In construing the Long Service Leave Act a purposive approach is to be adopted and the legislation is to be given a meaning that achieves its purpose. On this approach, courts may have regard to the history of the provision in establishing its purpose (Pambula District Hospital v Herriman (1988) 14 NSWLR 387 at 410; Saraswati v R (1991) 172 CLR 1). Long service leave legislation has been referred to as remedial legislation thereby requiring a liberal interpretation. It has also been described as a piece of social legislation designed to provide benefits for a category of the workforce and being in that category was entitled to be beneficially construed (see Lindner Pty Ltd v Builders Licensing Board (1982) 1 NSWLR 612). 74 Both parties accepted the appropriateness of the dictionary meaning of the word "continuous" in the term "continuous service", namely: "having the parts in immediate connection, unbroken; uninterrupted in time"; "without cessation": (The Macquarie Dictionary, 3rd ed). The word "continuous", however, introduces some tension in the provision when linked with the words "casual" and "part-time" and the words "on any other basis". Despite this tension, on the proper application of the Long Service Leave Act, these drivers qualify for long service leave. The factors that permit the finding that the three cane drivers rendered continuous service are: (a) there was only one written application for employment and that was upon initial engagement. No further written application was required and no selection process needed to be faced to continue the work for the following seasons; (b) the practice of signing the drivers' book at the end of the season was not, in any real sense, a further application. Drivers who signed the book, as a matter of course, simply took up as drivers in the new season unless advised that, because of misconduct/unsatisfactory performance, they would not be offered work; (c) the preference provided to existing drivers for work in the following season set out in the 1999 and 2001 agreements was a recognition of the employer's practice. The employer's practice was part of the terms of the drivers' employment and operated to hold out continuing employment in the new season. The mere indication of being available for that work was sufficient to continue the work; (d) the employment was weekly employment for the duration of the season. The start and finish of the season was not fixed in advance and depended on actions taken by the sugar mills. The drivers had to be available and remain available while the season continued; (e) "slack season" or "off-season" work was available but was limited and could not accommodate all the drivers because of the reduced amount of work available. The 2001 agreement contained a commitment by the company to achieve "the full-time engagement of its seasonal transport workers" as well as utilising its "full-time employees to their full capacity" before casual or part-time employees were engaged or work was contracted out to other companies or businesses. One of the objects of the 2001 agreement was to "promote job security for transport workers" and to provide them with access to more varied, fulfilling and better paid jobs; (f) all new employees were subject to a three month probationary period with "continuing employment" being subject to the satisfactory completion of the probationary period; (g) all drivers were required to undergo a medical and health check (as defined in the company's policy) every three years except drivers 49 years old and older who were required to undergo annual assessment; (h) the company undertook to provide not only induction training but detailed on-going training for the drivers; (i) sick leave accumulated and carried over from year to year. Arrangements could be made for annual leave and untaken rostered days off to be held by the company and to be taken at a convenient time; (j) a system of seniority was recognised under the agreements and was used as a guide, for example, in deciding who would be offered year round work when it became available; (k) the 2001 agreement not only provided for weekly employment but required either party to give a week's notice to terminate the employment. There was no evidence of a week's notice being given to the three drivers to terminate their employment up until the end of the 2004 season. 75 All of these matters speak of long term and ongoing, stable employment to be performed during the sugar cane seasons. The terms of employment, in part reflected by the contents of the agreement, show the existence of employment with all the hallmarks of an ongoing and continuous relationship (e.g. see the provisions for jury service, bereavement leave, parental leave and the like). The evidence does not suggest that there was a deliberate termination of employment at the end of the season with the intention of starting afresh in an employment relationship in the next season - these drivers were not the type of itinerant seasonal workers who may work only for a season or a few seasons or who may not perform the work again. 76 These considerations lead to the conclusion that the employment of the cane drivers was continuous service under one contract of employment for the purposes of ss11(a). If the seasonal nature of the employment, however, can be regarded as creating an interruption or determination of the service, then the same factors identified above result in the conclusion that the break in service has been caused by the absence of the worker under the terms of the worker's employment and s 4(11)(a1)(i) applies. The work was to be performed season after season, using the trained and experienced drivers who made up the primary pool of employees to be engaged for this work. The expectation of both the employer and the drivers was that they would return for work in the new seasons. The contention for the TWU that the work simply did not end with no one contemplating further work is accepted as an accurate description. The terms of the agreement expressly contemplated future work after a break when the current season ended. The absence of the workers during this period was clearly contemplated by the terms of their employment. The clear inference from all the evidence is, but for the lack of "off season" work, the drivers would be employed without a break for the full year. 77 The foregoing position under s 4(11(a) also follows by analogy with the casual or part-time employee prior to the 1985 amendments: the sporadic performance of the work was no disentitlement so long as the work was under an unbroken contract of employment. Following the widening of the class of employees who may obtain long service leave, these three drivers can be described as being continuously employed for the period during which the work was available and as falling within s 4(11)(a). That period was the cane sugar season and was known to occupy approximately six or seven months of the year. That class of work was continuously performed for the one employer, season after season, under one contract of employment. The position is no different to the greyhound steward working only 24 or 42 nights per year when those were the only occasions work was available - the gaps in the availability of work did not operate to create a discontinuity in the employment. 78 Having reached the view that the three drivers qualify under s 4(11)(a) or (a1)(i), it is strictly unnecessary to consider the claims said to arise under sub-section (a1)(v) and (vi), assuming a break in service. Having regard to the possible ramifications of this decision and in deference to the arguments submitted, nevertheless, it seems appropriate to say something about the claims under these two provisions. The Court is unable to conclude that either of these provisions applies in the circumstances of these cane drivers as the Act provides that periods of absence referred to in clauses (iii) to (vii) are not to be taken into account in calculating the period of service. The state of the evidence has not been addressed in this regard and no final conclusion as to these claims under these heads can be reached. The "slackness of trade" provision, however, appears to be directed to slackness of trade arising during the engagement or employment that is relied upon to qualify for long service leave. In the drivers' case, that employment was for the sugar cane season and there is no relevant interruption during that season caused by slackness of trade that can be relied upon. They did not work beyond that season and the reduced work cannot be said to be slackness of trade during the sugar cane season. It can be accepted that slackness of trade can apply to a particular class of work, even on a particular machine, and the provision does not require a consideration of the overall business of the employer to establish an interruption because of slackness of trade (see Amalgamated Engineering Union of Employees; Queensland v Evans Deakin & Co Ltd (per Matthews J, President of the Industrial Court 1972 AILR 186). In that case a person engaged on a particular machine qualified for long service leave when there was an interruption to his continuous service because work for that machine was unavailable due to slackness of trade although there was generally work available in other parts of the employer's undertaking. His Honour was of the view that the provision should be given a liberal interpretation noting that the phrase "slackness of trade" in its context lacked precision and therefore was difficult to define. It was acknowledged that the object of the sub-section may have thereby been achieved because there was no doubt that it was to be considered and applied in a variety of callings and circumstances. However, those words were sufficient to catch one phase of the relationship of employer and employee and the statutory right of the employee to long service leave was intended to be preserved if a temporary break in his employment, due to economic factors, occurred which could be associated with the decrease in the business or industrial activity of the employer. Ultimately, all that can be said is that this part of the claim is arguable if the service available for calculation qualifies each driver for consideration. 79 In relation to the claim that interruption or determination of the continuous employment arose from the absence of a worker for any cause by leave of the employer, the evidence does not disclose, in terms, any leave being granted by the employer in the strict sense. While it has already been accepted that a liberal approach should attend the construction of these provisions to ensure that their social purpose is achieved and it is to be kept in mind that a wide variety of circumstances were designed to be covered by the provision, in the present case the relevant "leave" needs to be inferred. There is nothing unusual about this approach. Employees who are permitted to be absent from work on weekends or other days or over other periods (such as maritime workers and oil riggers who often work long, continuous periods and then have long, continuous breaks) can be readily fitted under this category. At best it may be arguable that the nature of the employment contemplated the break between seasons such that it could be categorised as "leave" for the purposes ss (vi) of the Act. 80 In written submissions for the respondent, it was argued that the fact that seasonal sugar workers could not qualify for long service leave had been authoritatively determined by De Baun J in Re Sugar Manufacturers (State) and ors Award 1952 AR(NSW) 156. That case concerned an application under s 88C of the Industrial Arbitration Act 1940 to grant exemption from certain awards regarding long service on the basis that CSR Co Ltd was to provide benefits no less favorable (and mostly superior). At p 161 his Honour noted that, under the Industrial Arbitration Act, "service" must be provided to the employer under an unbroken contract of employment although short breaks would not operate to disqualify an employee from the benefit. The company proposed that employees working the sugar season (usually of six months' duration) would be credited with having worked a full year for long service leave purposes. His Honour then stated: That provision, of course, would apply mainly to members of the AWU who are employed at the mills. Under the Act such seasonal workers are not entitled to long service leave. Later, at p 162, his Honour stated: The whole idea of benefits in the nature of long service leave arise from the conception of employees continuing to work for an employer. 81 His Honour did not give details of the employment that led to his statement that seasonal sugar workers could not qualify for long service leave, but it appears to be accepted that they did not work under an unbroken contract of employment. That statement by his Honour, in the context of the previous restriction on entitlement to long service leave, is of no assistance in determining the claims brought after the 1985 amendments. The nature of these claims and the legislation under which they are brought requires the particular circumstances of the employment to be carefully considered. 82 It has been observed earlier that, although a number of cases were drawn to the Court's attention, for a variety of reasons including the fact that some cases dealt with legislation in materially different terms, those cases provide little assistance in the present matter. There are some cases, however, that deserve some comment. Although in Robinson's case it was found that there was a continuing, unbroken contract of employment over some 33 years during which time Mr Robinson acted as a steward at greyhound racing meetings, there are other cases concerning similar types of employment that have yielded a different result because of the different circumstances of the case. Such a case is Queen v The Industrial Appeals Court and Automatic Totalisators Ltd Ex parte Raymond John Kingston (unreported - 26 February 1976) a judgment of the Full Court of the Victorian Supreme Court. That case concerned service rendered on race days to the employer over a significant period of time but the Full Court found that each and every engagement was a separate contract and therefore did not qualify under the relevant legislation. In The Melbourne Cricket Club v Clohesy (2005) 15 VR 206, Dodds-Streeton J of the Victorian Supreme Court was called upon to consider whether or not a person engaged as a casual to perform work at the cricket ground over a period of 15 years was entitled to long service leave on the basis of continuous employment with one employer. It was held that the employment was casual in nature in the sense that it involved a series of ad hoc contracts of employment which lasted for the duration of each successive event and between each event the employee did not perform any work for the cricket ground, nor did he have any legal obligation or entitlement to work for them in the future. His Honour thought that the broad ratio decidendi of Ex parte Kingston was that continuous employment within the terms of the Act required a continuous contract imposing an obligation on the employer to offer and on the employee to render employment. Again, the description of the work as casual work or the performance of seasonal work as referred to in the report is of little relevance and the Court was applying a materially different legislative provision to the 1985 amendments to the Long Service Leave Act that are before this Court. 83 In Solora South Pty Ltd v McKendrick (1998) 85 IR 223, Gilchrist AJ sitting in the South Australian Industrial Relations Court dealt with an appeal involving an employee who had undertaken seasonal work for several years before becoming a full-time employee thus raising a question as to whether he was entitled to long service leave. Seasonal work was accepted by the parties as being "continuous" but the question arose as to the periods of work satisfying one or other of the provisions contained within s 6(1) of the South Australian Long Service Leave Act. Insofar as relevant to the case, that section provided that a worker's continuity of service remained unaffected by a number of circumstances, including absence from work in accordance with the contract of employment, the standing-down of the worker by the employer on account of slackness in trade where the worker is subsequently re-employed by the employer or any other break in the worker's service brought about by the employer where the worker returns to work or is re-employed by the employer within two months. At first instance, the Industrial Magistrate had found that each engagement for this seasonal work comprised a separate contract of employment and his Honour agreed with that finding. He noted that the evidence did not disclose that, during that period, there was any continuing obligation on the part of the appellant to re-offer work to the employee each year nor was there any continued obligation on the employee to re-present himself for work or to accept it if it was offered - accordingly, the breaks in continuity were not absences from work in accordance with the contract of service. The evidence also showed that the breaks between each of the periods exceeded two months, leaving the only possible way in which the employee could establish an entitlement to long service leave was to show that the break in service was brought about because of slackness in trade. The Industrial Magistrate had found that the provision covered seasonal workers and regarded the employer's need to stand-down members of its workforce on account of recurring seasonal events as satisfying the provision "standing-down ... on account of slackness of trade". His Honour disagreed and stated: It is to be noted that continuity of service can be interrupted for the purposes of the Long Service Leave Act , through no fault of the worker: section 6(1)(h). There is therefore no reason to interpret the Act from the premise that where a worker is stood down against his or her wishes, continuity of service for purposes of the Long Service Leave Act , will be presumed. In my view, the expression `slackness of trade' is directed towards the activities of the employer. I think, with respect, the learned Industrial Magistrate erred in focussing upon the seasonal nature of Mr. Burns' work with the appellant. In my view that was not particularly to the point. It might well be that despite his standing down, the activities of the appellant might have been as busy as ever, the only difference being that they might be directed towards other activities involving the employment of others. If that were the case, I do not think that it could be said that Mr. Burns was stood down on account of slackness in trade. He would have been stood down because for the time being, changes to the nature of the operations of the appellant, meant that Mr. Burns did not have the requisite skills to be of value to the appellant in its business, at that time. There was no evidence placed before the learned Industrial Magistrate that gave him any insight as to the trading activities of the appellant on each of the occasions that Mr. Burns was stood down. There was evidence that enabled a finding that Mr. Burns was stood down on account of the fact that there ceased to be a need to employ a process worker/fork-lift operator because the picking packing and processing activities of the employer had come to an end. But for the reasons I have just explained I do not think that that is sufficient to enable a finding that Mr. Burns was stood down on account of slackness of trade. 84 As earlier referred to, the decision of Matthews J as President of the Industrial Court of Queensland in the Evans Deakin case is to the contrary. In that case the employee was particularly skilled in the operation of big lathes used extensively in ship construction and repair work and he was in constant employment in that task. However, the work for those big lathes began to fall off and to some extent because of depressed conditions in the industry resulting in decreased orders and there was an increase in the work of smaller lathes but the employee was not keen to use them and was inefficient in their use. The Magistrate found that the employee's services were terminated by reason of slackness of trade in the "sphere" in which he was employed. The employer, on appeal, submitted that was too liberal an interpretation of the words in the Act and contended that slackness of trade in its relevant sense could not be applied to the activity, or lack of it, of one or two machines and there was no evidence to show that the volume of turning work of the company, even within the particular workshop in which the employee was engaged, had decreased and therefore his termination was not be reason of slackness of trade. While Matthews J accepted that there was some force in the submission he stated that, having regard to the scope of the sub-section, it should be given a liberal interpretation: it could apply to a "phase" of the work. The phrase "slackness of trade" in its context lacked precision and was therefore difficult to define but it was to be applied in a variety of callings and circumstances. His Honour held that the provision laid down a general rule that was to be applied to particular situations as they affected the employee and the employer in question. On the question of the meaning of the term "slackness of trade", the analysis and approach of Matthews J is to be preferred. 85 In Williams v Waikerie Producers Ltd [2002] SAIRComm 3 (22 January 2002), Industrial Magistrate A R Cunningham dealt with an application from a seasonal worker, engaged for processing and packaging fruit, who was laid off at the end of the season until the next season commenced. The respondent's packing sheds operated between six and nine months of the year and during this period, the sheds worked virtually full-time five days per week, Monday - Friday. The workforce was also required to perform some overtime both during the week and sometimes on weekends according to the exigency of available work. The seasonal workers so engaged were progressively laid off until the commencement of the next picking season. While the employee did not work continuously for the respondent but only during the normal seasons, she remained "on the books" for the whole period of her engagement along with many other seasonal workers and the respondent conceded and acknowledged the continuity of the applicant's service. The employer's records showed that the applicant had worked over a number of years and had been laid off at various times. On each occasion the employee was laid off, she was promised she would be re-engaged when the next season began and that evidence was confirmed by the employer. The point raised by the employer, while conceding continuity of service, was that the periods when the employee was not actively engaged in its service could not, under the Act, be used to calculate an entitlement. 86 In summary, the approach was that, in a claim for seven years' continuous service, the employee had to actually work for seven years and not over a period of seven years: this approach required that each seasonal period of employment between six and nine months was to be added together to total seven years' service and thus qualify for long service leave payment. The Industrial Magistrate noted that, in dealing with the rate at which long service leave was to be paid, in circumstances where the work at ordinary time fluctuated over the period of accrual the work was to be paid at the weekly rate derived from averaging earnings over the past three years of the accrual period. While he recognized that there might be many situations giving rise to fluctuations and ordinary time rates of pay over a period of three years, the most common would simply be variation in the hours of work. Even on a cursory reading the Industrial Magistrate was of the view that the provisions of the Act were designed to cover casual and part-time employment over extended periods of time and this provision acknowledged that such employees received, on average over that period, less than the amount that a full-time worker would receive on a regular weekly basis and that on occasions, they might earn more than a full-time worker. In dealing with this situation, the Industrial Magistrate stated: 31 These illustrations show that the respondent's basic premise - that the off-season lay-offs, while absence with the leave of the employer, do not count towards the worker's accrual - must be flawed. The lapse of time towards the minimum qualification is to repeat, expressed by the Act as seven years. But if the off-seasons are to be counted towards this accrual and it must be acknowledged that they are absences from work in the sense used by the Act then some alternative must be found to explain their nature. 32 That alternative is to be found in par (c) of subs 6(1) - 'absence from employment in accordance with the contract of employment'. At first blush, this seems at best a statement of the obvious in an Act that hinges on the very concept of contracts of employment with its well-developed social incidents. In the case of a full-time five days a week worker, perhaps it is obvious - absences from work on weekends and public holidays are so integrated a feature of such employment that one could almost say 'it goes without saying'. 33 The Act, however, has far wider scope than that attempting, as it does, to cover all forms of employment in the State whether the terms of engagement derive from awards, enterprise agreements or simple contracts between the parties, and in this sense it must cover an enormous variety of working situations, some general and others specific to particular industries or workplaces, and in this context the reason for the inclusion of par (c) becomes obvious, and by no means circular. ... 36 It has been common throughout the case to refer to the applicant and her fellows as "seasonal workers", and the patterns I have described appear to have been long established in this industry. As I have attempted to show, however, there is nothing special about seasonal work (which exists in many other industries as well) that distinguishes it from other kinds of part time and regular casual employment. Indeed, the facts and evidence in this case show that, in addition to the extended absences between seasons, the workers were also absent - usually stood-down by the employer - for shorter periods of several days or so even during the packing season. There does not appear to me to be any legal or logical basis for distinguishing between such absences and the more extended stand-downs between seasons. 87 The Industrial Magistrate went on to note that the employee worked throughout the period in question at the behest of the employer, starting and finishing the season when directed by the employer. There was no question of the employee terminating the arrangement on any occasion for her purposes and indeed, she had made efforts at the end of each season to notify her supervisor that she was available for work in the next season as and when required. To that extent the employee was at the beck and call of the employer, even during the lay-offs if unseasonable work was available or in accordance with the vagaries of each season and the exigencies of the employer's operations. The Industrial Magistrate stated that, once it was acknowledged that the employee had continuity of employment on this agreed basis then the lay-off periods - whose length was determined unilaterally by the employer - seemed clearly to be characterised as "absences from work in accordance with the contract of employment". While there are similarities between these two cases, the present matter is to be decided on its own facts. Nevertheless, the process of reasoning has significance for the present case. 88 Having regard to the various matters raised in these cases, there is nothing by way of principle that would cause the Court to reconsider its conclusion that these seasonal cane drivers are entitled to long service leave. Declarations will therefore be made as sought by the TWU but modified to reflect the conclusions of the Court. In relation to the question of costs, the TWU accepted that the matters the subject of these applications were an important industrial issue raised by the industry union with a significant employer and therefore, in accordance with the approach adopted by the Full Bench of the Commission in The Commission for Children and Young People v A (No 2) (2004) 132 IR 112, the proper order as to costs should be that each party pay their costs. In the present matter, I accept that is an appropriate approach and there will be no order as to costs. 89 A further matter, however, needs to be considered. In written submissions the respondent argued that, in view of the conduct of the TWU, effectively recognising that these seasonal drivers were not eligible for long service leave, the principle of estoppel was applicable. The respondent relied upon the fact that, in the 1984/1985 dispute proceedings, the TWU asserted that long service leave was not available and sought to vary the award to rectify the problem. The TWU ultimately did not press this 1984/1985 claim and pointed to the fact that, in 1985, the Long Service Leave Act 1955 was amended to expand its coverage. The respondent also points to the Heads of Agreement negotiated in 1996 where the TWU acknowledged that the seasonal drives were not eligible for long service leave and used that fact as a ground for a further increase in rates. In addresses, counsel for the respondent did not press the estoppel argument but indicated that this conduct was relevant to the exercise of the Court's discretion under s 154 of the Industrial Relations Act and was a significant reason why the declarations sought should not be made. 90 The application of the principle of estoppel has frequently been rejected by the Commission in relation to industrial matters (see for example the Full Bench decisions in Re Australian Workers' Union and ors I1983) 4 IR 404 and Re Maritime Services Board (General Division - Navigation & Shipping Branch) Award and ors (1984) 9 IR 263). While it may be accepted that proceedings under s 154 of the Act may fall into a different category, the present case arises in an industrial context and the respondent's sensible decision not to press this technical argument appears to reflect the usual approach of the Commission. 91 In relation to the submission directed to discretionary issues, the facts relied upon are somewhat clouded. The 1984/1985 dispute may have involved a misunderstanding of the law that might have been illuminated if the matter had reached full argument. Nothing can be inferred from the fact that the matter was not pressed to finality but it is of interest that, in 1985, the Long Service Leave Act 1955 was specifically extended to cover casuals and part-time workers. Similarly, the 1996 Heads of Agreement document is of uncertain provenance. Mr Reginald Mills could not say if the document was prepared by him or someone else and Mr Aird specifically rejected the assertion that long service leave was raised or traded-off for wage increases in 1996. The document is not signed, nor is it in any other way adopted by the TWU although the evidence is that the increases and other provisions contained in the document were applied by the respondent. In addition when pro rata long service leave was raised in the 2003 enterprise discussions, A J Mills did not respond by pointing out that the subject had been dealt with in the 1996 agreement. In those circumstances, these matters are not capable of raising a concern as to the appropriateness of exercising the jurisdiction conferred by s 154 of the Act. ORDERS 92 (a) On its proper interpretation s 4(11)(a) and (a1)(i) of the Long Service Leave Act 1955 establishes that, for the purposes of determining any entitlement to long service leave, the engagement of Mr Stan Bright should be deemed continuous from the time of Mr Bright's initial engagement with the respondent, June 1989 up until 27 November 2004. (b) On its proper interpretation ss 4(11)(a) and (a1)(i) of the Long Service Leave Act 1955 establishes that, for the purposes of determining any entitlement to long service leave, the engagement of Mr Ken Bryant should be deemed continuous from the time of Mr Bryant's engagement with the respondent, June 1985 up until 4 December 2004. (c) On its proper interpretation ss 4(11)(a) and (a1)(i) of the Long Service Leave Act 1955 establishes that, for the purposes of determining any entitlement to long service leave, the engagement of Mr Barry Hungerford should be deemed continuous from the time of Mr Hungerford's initial engagement with the respondent, June 1993 up until 27 November 2004. (d) No order as to costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.