... A finding that a dismissal has taken place depends on whether or not there is a continuing contract of service. The following tests, going to issues of fact, can be applied in determining the nature of the contract of service:
· The number of hours worked per week.
· Whether the employee worked according to a roster system that was published in advance and whether the employment pattern was regular.
· Whether there was reasonable mutual expectation of continuity of employment.
· Whether notice was required by an employer prior to the employee being absent or on leave.
· Whether the worker reasonably expected that work would be available.
· Whether the worker had a consistent starting time and set finishing time."
146 It follows that in order to resolve whether there was continuity of employment, a factual analysis as was undertaken by Haylen J, must occur. In order to determine whether a casual falls within paragraph (a) of s 4(11), there is no reason to treat seasonal employees differently. The same process of analysis that the Commission has traditionally applied as to whether a casual is subject to continuous employment would also apply to an employee who was said to be subject to seasonal employment. They should not be treated as a category falling in or out of the section. Ultimately, it must depend on the facts of the relationship for seasonal employees in much the same way as it would for casual employees. As I have already observed, this was the task undertaken by his Honour at [73] - [74]. There would, of course, be some seasonal workers, for example, the itinerant fruit picker who may turn up for one season and then go elsewhere or return for only part of the season. That is clearly a case where there is no continuing expectation and no continuing availability of future work. This was not the case with the sugar cane drivers.
147 The question to be determined is: how should these employees be categorised? It is not a question to be determined by reference to some notional category of seasonal employees, it is simply a question of fact to be determined on the evidence in respect of the sugar cane drivers.
148 Both parties advanced The Macquarie Dictionary definition of "continuous" before Haylen J and before the Full Bench, that being, "having the parts in immediate connection, unbroken; uninterrupted in time"; "without cessation."
149 However, having regard to this definition, it does not answer the question of what aspects or features of employment determine that it is "continuous". The appellant contended that this definition meant that employment, in order to qualify as continuous, must be chronologically continuous. His Honour, correctly in my view, rejected this contention (at [71] - [72]). As Haylen J identified by reference to the decision of Robinson v New South Wales National Coursing Association Ltd (1982) 3 IR 161 and the examples given in the Parliamentary debate in respect of the 1985 amendments, in particular, by the Hon B Unsworth, Minister for Transport and Vice-President of the Executive Council, it is clear that the Parliament intended that even sporadic employment was capable of falling within the notion of continuous service, depending upon the particular facts of the case.
150 Relevantly, the Hon B Unsworth observed, New South Wales Legislative Council, Parliamentary Debates (Hansard), 9 April 1985 at 5454:
"... The third proposal that has been included [in the Long Service Leave (Amendment) Bill] 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."
151 There is no category of employee who is literally employed on a strictly chronological continuous basis. Part-time workers who are clearly intended to be caught by the section, may work only a number of days or a number of hours in a particular week, but are clearly contemplated as falling within s 4(11)(a). Chronological cannot be the test for continuous employment, nor is the question answered by enquiring whether there has been an interruption to the employment. The fact that, as occurred here, there was an interruption because of the end of one season and the start of another season does not, of itself, demonstrate the work was not continuous. Chronological tests, in my view, have no support in the language of the Statute. The more reliable test of continuity is by reference to the concepts discussed in cases dealing with casuals: see Ryde Eastwood Leagues Club Ltd; Neill v Cameron (1977) AR 505 and Robinson v New South Wales National Coursing Association.
152 The appellant placed critical importance on the fact that there was a separate contract of employment for each season. However, in my view, there is no substance in this proposition. The clear words of the section, supported by the clear intention of the Parliament, was that "continuous service" could apply notwithstanding there were one or more contracts of employment. See s 4(11)(a). Continuous service can exist notwithstanding that there are multiple contracts of employment. Once it becomes an analysis based on the facts of a particular case, then it is simply a matter of fact and degree that the first instance judge applies to determine the question. Unless there can be demonstrated error in the way his Honour carried out the analysis, whether it be some error of fact or error in the application of the Statute, there is no basis for appellate intervention.
153 I turn briefly to consider s 4(11)(a1), which I shall describe as the "deeming provisions." In my view, it cannot be correct that discreet contracts of employment could be relied upon to escape the operation of s 4(11)(a), particularly in circumstances where the legislature has made it clear that that, of itself, would not disqualify an employee from the provisions of s 4(11)(a). Such an approach fails to give proper weight and significance to the provisions of s 4(11)(a) which says, as I have already observed earlier, that one or more contracts of employment will not disqualify an employee from continuous service. It cannot be the case that if an employee is not disqualified from s 4(11)(a), he or she is then disqualified by the deeming provisions. Such an approach to the construction of beneficial legislation would render the section nugatory. It would follow that the section would never apply to seasonal workers. It is unnecessary to turn to the "deeming provisions", even if an employee has breaks due to one or more contracts of employment, because that employee is already deemed to have continuous service pursuant to s 4(11)(a).
154 The factors identified at [74] of his Honour's judgment to demonstrate continuous employment were equally relied upon by his Honour at [76] of the decision to support the conclusion that an entitlement arose under s 4(11)(a1)(i) of the Act. In my view, noting these factors, it is difficult to envisage a more obvious case that the legislation had in mind in amending the Act. Again, there is no challenge to either the factual correctness of the matters identified, or their relevance to considerations in the decision making process engaged in by his Honour. They are matters from which the inference may properly be drawn that, to the extent that appointment of the drivers was interrupted by the period between the end of one sugar cane season and the start of the next (or the period between any slack season work and the sugar cane season, or vice versa) that was something that was necessarily contemplated by the terms of the employment.
155 The appellant says, in effect, that the drivers were employed on discreet contracts which expired at the end of the sugar cane season so that the period between the season during which the drivers did not work can be explained by the termination of their contracts upon the effluxion of the season, rather than anything contemplated by the terms of their employment (which, it contends, did not run between seasons). This contention is incorrect. As I have already determined, s 4(11)(a) makes it clear that the mere fact that there are a number of discreet contracts of employment does not mean that there is no continuity of employment. Therefore, the deeming effect of s 4(11)(a1)(i) cannot be avoided merely by invoking the claimed existence of separate contracts of employment. That has already been accommodated in s 4(11)(a). Section 4(11)(a1)(i) (and the other deeming provisions) must be read as operating notwithstanding that the employment is under more than one contract of employment.
156 The appellant incorrectly submitted that the Act requires an unbroken contract of employment or a series of contracts such as those typical of the "regular casual", or where there is a "stand down" of some kind. The "stand down" provisions in s 4(11)(a1) may apply even where the employment involves a series of contracts, so that their operation cannot be excluded merely on the basis of the alleged existence of separate contracts. Furthermore, there is no basis to conclude that accommodation of multiple contracts is confined to "regular casuals". Section 4(11)(a) equally accommodates persons employed "whether on a permanent, casual, part-time or any other basis". This must have been intended to include employees on multiple contracts, so that the "regular seasonal" is covered as much as the "regular casual", and will equally have the benefit of the deeming provision of s 4(11)(a1) where they are applicable. In my view, it cannot seriously be suggested that the legislature had any other purpose in mind but to extend benefits under the Statute to this group of employees.
157 Although the respondent did not contend that s 4(11)(a) applied at first instance, there is no issue that that was the case. His Honour, at first instance, decided that s 4(11)(a) applied. The appellant says that this alone should justify the grant of leave to appeal and the appeal being upheld. This complaint, absent a denial of natural justice which is not claimed by the appellant, in my view, has no significance. The respondent before his Honour, relied on the deeming provisions as to continuity of service. His Honour, in determining the case brought below, was entitled to consider whether it was necessary for him to consider the deeming provisions at all having regard to the dictionary meaning of "service". It is clear from a proper construction of s 4(11)(a), that the deeming provisions in s 4(11)(a1) are reached, only if an employee does not fall within s 4(11)(a). The fact that the respondents relied upon the deeming provisions meant that his Honour, as a preliminary point, had to determine whether s 4(11)(a) applied or not.
158 The proceedings were for declaratory relief and, in my view, his Honour was entitled to consider a case about the application of the deeming provisions and whether they applied, having regard to the primary provision in s 4(11)(a). The appellant addressed the question of s 4(11)(a) before his Honour and to the extent they wished to put any further submissions in that respect, have had an opportunity to do so in this appeal. There was no suggestion in relation to s 4(11)(a) that the appellant wished to call some further evidence before his Honour. It did not seek to adduce any additional evidence on appeal. In my view, no legal consequences attached to this issue.
159 In conclusion, whilst I have elaborated on the points of construction and issues of interpretation as they have been developed in the course of argument in the appeal, it appears to me that the decision at first instance was correct and should not be disturbed.
160 I would dismiss the appeal and affirm his Honour's decision on the basis of the reasoning stated in his Honour's judgment. I would propose the following orders: