A J Mills and Sons Pty Ltd v Transport Workers' Union of New South Wales

CITATION: A J Mills and Sons Pty Ltd v Transport Workers' Union of New South Wales [2009] NSWIRComm 135

A J Mills and Sons Pty Ltd (Appellant) PARTIES: Transport Workers' Union of New South Wales (Respondent)

CORAM: Boland J President at [1]; Backman J at [1]; Staff J at [132]

APPEAL - statutory interpretation - long service leave - sugar cane industry - whether seasonal workers entitled to long service leave - purpose of long service leave - history of long service leave - legislative intention - consideration of meaning of 'continuous employment' - unbroken contract of employment - working under one or more contracts of employment - expectation of continuing employment - engagement - appeal upheld.

CATCHWORDS: STATUTORY INTERPRETATION - appeal - long service leave - sugar cane industry - whether seasonal workers entitled to long service leave - purpose of long service leave - history of long service leave - legislative intention - consideration of meaning of 'continuous employment' - unbroken contract of employment - working under one or more contracts of employment - expectation of continuing employment - engagement - appeal upheld.

LONG SERVICE LEAVE - appeal - statutory interpretation - sugar cane industry - whether seasonal workers entitled to long service leave - purpose of long service leave - history of long service leave - legislative intention - consideration of meaning of 'continuous employment' - unbroken contract of employment - working under one or more contracts of employment - expectation of continuing employment - engagement - appeal upheld.

Annual Holidays Act 1944 Industrial Arbitration (Amendment) Act 1951 Industrial Arbitration Act 1940 Industrial Relations Act 1996 LEGISLATION CITED: Industrial Relations Act 1999 (Qld) Interpretation Act 1987 Long Service Leave (Amendment) Act 2005 (Vic) Long Service Leave Act 1955 Long Service Leave Act 1992 (Vic) Long Service Leave Amendment Act 1985

Amalgamated Engineering Union of Employees; Queensland v Evans Deakin & Co Ltd [1972] AILR 186 BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 Capral Aluminium Limited v WorkCover of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 CIC Insurance Ltd v Bankstown Football Club Limited [1997] HCA 2; (1997) 187 CLR 384 Project Blue Sky Inc & Others v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Endeavour Coal Pty Ltd & Ors v Construction, Forestry, Mining and Energy Union (New South Wales) [2007] NSWIRComm; 70 (2007) 161 IR 96 Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 Harrison v Melhem [2008] NSWCA 67 Khoury v Government Insurance Office of NSW [1984] HCA 55; (1984) 165 CLR 622 Licensed Clubs Association of Victoria v Higgins (1988) 4 VIR 43 Neill v Cameron [1977] AR (NSW) 505 Newcastle City Council v GIO General Limited [1997] HCA 53; (1997) 191 CLR 85 CASES CITED: Re Bolton & Others; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 Re Sugar Manufacturers (State) and ors Award (1952) AR (NSW) 156 Re Transport Industry - Mutual Responsibility for Road Safety (State) Award and Contract Determination (No 2) [2006] NSWIRComm 328; (2006) 158 IR 17 Robinson v New South Wales National Coursing Association Ltd (1982) 3 IR 161 Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (1997) 37 ATR 528 Ryde Eastwood Leagues Club Ltd v Taylor (1994) 56 IR 385 Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 207 Solora South Pty Ltd v McKendrick (1998) 85 IR 223 The Melbourne Cricket Club v Clohesy (2005) 15 VR 206 The Queen v The Industrial Appeals Court and Automatic Totalisators Ltd Ex parte Raymond John Kingston (Full Court of the Victorian Supreme Court, 26 February 1976, unreported) Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52; (2004) 219 CLR 165 TWU of New South Wales v A J Mills & Sons t-as Mills Transport CDM Logistics [2008] NSWIRComm 245 Williams v Waikerie Producers Ltd [2002] SAIRComm 3 Zoological Parks Board of New South Wales and Australian Workers' Union, New South Wales [2004] NSWIRComm 85; (2004) 135 IR 56

C P Mills, New South Wales Industrial Laws, 4th ed (1977) Butterworths Donald Gifford, Statutory Interpretation, (1990) Law Book Co TEXTS CITED: JJ Spigelman AC, "Statutory Interpretation: Identifying the Linguistic Register" (1999) 4 Newcastle Law Review 1 JJ Spigelman AC, "The Poet's Rich Resource: Issues in Statutory Interpretation" (2001) 21 Aust Bar Rev 224 JJ Spigelman AC, "Working with Statutes" (2005) 79(12) Australian Law Journal 769 The Macquarie Dictionary, 3rd ed (1997) The Macquarie Library Pty Ltd

Mr H J Dixon SC & Mr J W Nolan of counsel (Appellant) Harmers Workplace Lawyers LEGAL REPRESENTATIVES: Mr A A Hatcher of counsel (Respondent) Transport Workers' Union of New South Wales

A J MILLS & SONS PTY LTD v TRANSPORT WORKERS' UNION OF NEW SOUTH WALES

Application by A J Mills & Sons Pty Ltd for leave to appeal and appeal against a decision of Justice Haylen given on 17 December 2008 in TWU of New South Wales v A J Mills & Sons t-as Mills Transport CDM Logistics [2008] NSWIRComm 245

1 A J Mills & Sons Pty Ltd ('the appellant') seeks leave to appeal and, if leave is granted, to appeal against a decision of Haylen J (TWU of New South Wales v A J Mills & Sons t-as Mills Transport CDM Logistics [2008] NSWIRComm 245) given on 17 December 2008, in which his Honour decided that three employees of the appellant were entitled to long service leave pursuant to the Long Service Leave Act 1955 ('the Act').

2 The appellant operates a road transport service. For 32 years from 1973 to 2004 it contracted to provide services for the cartage of sugar cane between sugar cane farms and various sugar cane mills (including Condong, Broadwater and Harwood). In order to provide these services the appellant employed drivers on a seasonal basis during the sugar cane harvesting season. That season ran for a period of approximately 26 weeks between June and December each year. 3 Mr Stan Bright, Mr Ken Bryant and Mr Barry Hungerford were members of the Transport Workers' Union ('TWU' or 'the respondent') and employed by the appellant as drivers during the sugar cane harvest season. Before the appellant lost the sugar cane transporting contract for the 2005 season, the TWU alleged that the employees were engaged by the appellant on a continuous basis each season and in excess of 10 years. The respondent contended that this continuous seasonal work entitled the three employees to pro rata long service leave. 4 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. Mr Hungerford said that he was a seasonal cane driver for the appellant at the Broadwater sugar mill for 12 successive seasons from 1993 up until 2005. Mr 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 the appellant at the Broadwater mill. 5 The appeal involves the question of whether seasonal workers are entitled to long service leave. There is no authoritative decision in this jurisdiction regarding that question and, accordingly, we consider the matter is of such importance that, in the public interest, leave should be granted: see s 188(2) of the Industrial Relations Act 1996. FIRST INSTANCE DECISION

6 The application before Haylen J sought declarations pursuant to s 154 of the Industrial Relations Act and was in the following terms: 1. On its proper interpretation clause ( sic ) 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 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. 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 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. 7 The legislation that Haylen J was required to consider is to be found in ss 3 and 4 of the Long Service Leave Act. Section 3 defines a 'worker' in the following terms: 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. 8 Section 4 provides for a worker's entitlements to long service leave. Relevantly, the section provides: 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,

… 9 Following an extensive review of the evidence, Haylen J identified those factual matters that were relevant to his consideration. They were as follows: · 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 appellant's contract required a certain amount of training before the work could be competently and efficiently performed. It was in the interest of the appellant 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. · 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. · 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. Drivers (on a case by case approach) could ask that they not be paid annual holidays or accrued entitlements until some other suitable time. · Accumulated sick leave was carried over from season to season. · By operation of the enterprise agreement, 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 suggested 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 was 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. · Although the appellant operated in a number of divisions, the cane season work was a very large proportion of the overall business of the appellant 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.

10 His Honour noted that 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. 11 At [68] Haylen J considered what was intended by amendments made to the Long Service Leave Act in 1985 by the Long Service Leave Amendment Act 1985: [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.

12 Haylen J considered that the broad terms of the 1985 amendment did 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 'service', he said, could be permanent, casual, part-time or on any other basis and may be rendered under 'one or more contracts of employment'. His Honour observed that by its very nature 'casual' and 'part-time' work included work performed from time to time; that a part-time or casual employee may render service for a small number of hours per week or over a longer period. When this occurred and when such service was rendered under one or more contracts of employment, the question arose how wide the legislature intended this provision to operate. His Honour said: 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. 13 Haylen J identified those factors that permitted the finding that the three cane drivers rendered continuous service: (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.

14 His Honour found that all of the foregoing matters spoke of long term and ongoing, stable employment to be performed during the sugar cane seasons. Haylen J took the view that the terms of employment showed the existence of employment with all the hallmarks of an ongoing and continuous relationship. The evidence, he said, did 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.' 15 Those considerations led his Honour to conclude that the employment of the cane drivers was continuous service under one contract of employment for the purposes of s 4(11)(a) of the Long Service Leave Act. However, if the seasonal nature of the employment could be regarded as creating an interruption or determination of the service, then his Honour held that the same factors identified above resulted in the conclusion that the break in service had been caused by the absence of the worker under the terms of the worker's employment and s 4(11)(a1)(i) applied. In this respect, his Honour reasoned: 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. 16 Whilst his Honour considered it was strictly unnecessary to consider the claims said to arise under s 4(11)(a1)(v) and (vi), Haylen J felt he should do so having regard to the possible ramifications of his decision and in deference to the arguments submitted. However, his Honour was unable to conclude that either of these provisions applied in the circumstances of the cane drivers, as the Act provided that periods of absence referred to in s 4(11)(a1)(iii) to (vii) were not to be taken into account in calculating the period of service. 17 Haylen J addressed a number of cases dealing with long service leave entitlements (Re Sugar Manufacturers (State) and ors Award (1952) AR (NSW) 156; The Queen v The Industrial Appeals Court and Automatic Totalisators Ltd Ex parte Raymond John Kingston (unreported, Full Court of the Victorian Supreme Court, 26 February 1976); The Melbourne Cricket Club v Clohesy (2005) 15 VR 206; Solora South Pty Ltd v McKendrick (1998) 85 IR 223; Amalgamated Engineering Union of Employees; Queensland v Evans Deakin & Co Ltd [1972] AILR 186; and Williams v Waikerie Producers Ltd [2002] SAIRComm 3). His Honour concluded, however, that there was nothing in the cases by way of principle that would cause him to reconsider his conclusion that the seasonal cane drivers were entitled to long service leave. 18 In relation to Sugar Manufacturers, that was a decision of De Baun J in which his Honour held that seasonal sugar workers could not qualify for long service leave. Haylen J found that the decision, having been given in the context of the previous restriction on entitlement to long service leave, was of no assistance in determining claims brought after the 1985 amendments.

19 Haylen J made the following orders: (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.

20 The grounds of appeal were as follows: (1) His Honour erred in deciding that the the LSL Act applied to three former employees of the Appellant, being Mr Stan Bright, Mr Ken Bryant, and Mr Barry Hungerford (the " Drivers ") by reason of the fact that their employment was 'continuous service' or was deemed to be 'continuous service'.

(2) His Honour erred in failing to properly characterise the terms of the Drivers' contracts of employment.

(3) His Honour erred in failing to properly characterise the terms of the relevant industrial agreement (being the Seasonal Cane Transport and Bagasse Driver Employees Enterprise Agreements made in 1999 and 2001) (the " Enterprise Agreements ").

(4) His Honour erred in deciding that the terms of the Enterprise Agreements which governed the work of the Drivers brought them within section 4(11)(a1)(i) of the LSL Act.

(5) His Honour was in error to conclude that the terms of the Drivers' employment, in part reflected by the contents of the Enterprise Agreements, demonstrated an ongoing and continuous relationship which met the definition of 'continuous service' in the LSL Act.

(6) His Honour erred in placing any weight at all upon the sick leave accrual provision of the Enterprise Agreements as a relevant indication of 'continuous service' of the Drivers, and failed to adequately have regard to the Award history of the sick leave accrual provision.

(7) His Honour erred in concluding that the 're-employment of seasonal drivers' term of the Enterprise Agreements: (a) operated to "hold out" continuing employment to the Drivers in the new season; and (b) was a reflection of an agreement with the respondent that drivers would be engaged season to season without having to re-apply for the work.

(8) His Honour erred in concluding that the Appellants' conduct in paying out annual leave and issuing a notice of termination and separation slip was merely an administrative act, rather than evidence of the conclusion of the Drivers' employment at the conclusion of each season.

(9) His Honour erred in failing to apply the ordinary English meaning of the word 'continuous' in interpreting the LSL Act, and in particular, s 4(11)(a) of the LSL Act.

(10) His Honour was in error to conclude that the employment of the Drivers was continuous service under one contract of employment for the purposes of s 4(11)(a) of the LSL Act.

(11) His Honour was in error to conclude that the seasonal nature of the employment, could be regarded as creating an interruption or determination of the Drivers' service, and thus was a break in service which had been caused by the absence of the worker under the terms of the worker's employment and therefore brought them within s 4(11)(a1)(i) of the LSL Act.

(12) His Honour was in error to conclude that the absence of the workers during the 'off season' period was clearly contemplated by the terms of their employment and that 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. His Honour's conclusion failed to address the essential question - i.e. whether the employment of the Drivers was relevantly 'continuous' and whether the 1985 amendments to the LSL Act extended the scope of the LSL Act to the seasonal employment of the Drivers.

(13) His Honour erred in concluding that the "expectation" of the Drivers of being re-employed each season was a factor that could properly indicate 'continuous service' of the Drivers. (14) His Honour was in error to conclude that the widening of the class of employees who may have the required 'continuous service' to obtain long service leave, under s 4(11)(a) of the LSL Act extended the benefits of the LSL Act to the Drivers. (15) His Honour was in error to conclude that the Drivers could be described as being continuously employed for the period during which the work was available and as falling within s 4(11)(a) of the LSL Act. (16) His Honour was in error to conclude that the position of the Drivers is no different to that of the greyhound steward held to have continuous service and to be entitled to long service leave in Robinson v New South Wales National Coursing Association Ltd (1982) 3 IR 161. (17) His Honour failed to give proper regard to the history of the LSL Act and in particular, the accepted position with respect to seasonal workers under NSW law described in Re Sugar Manufacturers (State) and ors Award 1952 AR(NSW) 156.

21 It was contended for the appellant that Haylen J erred in a number of fundamental respects in that he: (a) failed to apply the usual principles of contract law;

(d) regarded acts done or documents provided in effect as a "sham" intended by the parties to give to third parties or to a court, the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations which the parties intended to create. 22 It was also submitted his Honour's decision involved an inherent inconsistency on the key question of whether the employment of the cane drivers was continuous service under one contract of employment. 23 It was submitted that despite the reliance by the respondent on subparagraphs (i), (v) and (vi) of s 4(11)(a1) in its pursuit of declarations of right, Haylen J decided that the claim was sustained under s 4(11)(a), namely, that the employment of the cane drivers was continuous service under one contract of employment. In that respect, it was submitted his Honour erred. 24 The appellant described the evidence about the cane drivers' employment as follows: (a) employment for each of the drivers was for the sugar cane season;

(b) the drivers were thus employed for a specified task;

(c) the contract and employment ended at the completion of the task;

(d) at the end of the season the Appellant provided the drivers with a notice of termination and a separation slip paying accumulated entitlements for annual leave and rostered days off;

(e) there was no basis for concluding that at the time of the making of the first such contract that it was a contract whereby the employee was entitled to, and the employer was obliged to, provide work for each following season until the contract was otherwise terminated - there was no right to work each subsequent season and no corresponding duty on the employer to provide such work;

(f) there was no evidence of any variation of the first contract creating an entitlement to ongoing seasonal work.

25 The appellant submitted that the employment of the three cane drivers (and hence service) could not have been regarded as 'continuous' since it was for a specified task. The appellant examined each of the eleven factors identified by his Honour as supporting the proposition that the employment amounted to 'continuous service' for the purposes of the Long Service Leave Act. In respect of nine of those ((a), (b), (d), (e), (f), (g), (h), (j), (k)) it was submitted they said nothing at all of assistance to lead to such a conclusion. For example, it was submitted that the fact that there was only one written application for employment upon initial engagement was neither here nor there because of the nature of the work. No re-accreditation was required, and it was not at all surprising that a driver once known would be preferred for work in subsequent seasons. In this connection, senior counsel submitted the practice of signing the drivers' book at the end of the season had no additional significance since drivers who signed the book, as a matter of course, simply notified the appellant of their availability to be re-employed for a new season and were re-employed, unless advised that, because of misconduct/unsatisfactory performance, they would not be offered work.

26 In relation to the two remaining factors, being (c) (the preference provided to existing drivers for work in the next season) and (i) (the sick leave accumulation), the appellant submitted those factors could only support the proposition if they were interpreted contrary to their express terms and the history of each of those provisions. 27 According to the appellant, the evidence showed that the sick leave accumulation clause was a concession made by the appellant to an award variation request from the TWU in 1986, and it should be properly seen as a mechanism designed to ameliorate the seasonal character of the employment, not convert that seasonal employment into something else. Equally, the preference for a re-employment clause only highlighted the non-continuous nature of the drivers' employment due to the fact that under that clause the drivers were to be given preference in the 're-employment' of seasonal drivers over new applicants in the next season, which necessarily pre-supposed that the employment of the drivers had in fact been terminated at the conclusion of the previous season, and was, therefore, in no way continuous. 28 The appellant noted that central to his Honour's reasoning to arrive at the conclusion that there was relevant service under one unbroken contract of employment was his conclusion that the practice of providing the cane drivers with a notice of termination and a separation slip paying out their accumulated annual leave and rostered day off entitlements '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'. In this regard, it was submitted there was no valid basis for his Honour to ignore the fact that a contract for a season came to an end at the end of the season; that the notices of termination were not a sham or that the parties intended a legal consequence fundamentally different from that which the practice demonstrated. 29 The appellant next dealt with his Honour's finding that if the seasonal nature of the employment could be regarded as 'creating an interruption or determination of the service' then the break in service was caused by the absence of the worker under the terms of the worker's employment and s 4(11)(a1)(i) applied. The appellant submitted that none of the factors considered by his Honour as lending support for this finding withstood scrutiny. For example in relation to the expectation of both the employer and the drivers that they would return for work in the new seasons, the appellant submitted an expectation does not, and cannot, crystallise into a contractual (or other relevant) term of employment. 30 The appellant referred to sub-paragraph (vii) of s 4(11)(a1). It was submitted that if it could be said that the 'between season absence' was somehow 'caused' by the employer, then the only circumstance in which the service could be deemed to be continuous, was where the resumption of the employment occurred within two months. The drivers could not qualify under this exception, being 're-employed' in successive seasons, which were more than two months apart.

31 However, it was submitted that the existence of sub paragraph (vii) had significance beyond the fact that the drivers could not qualify under it. It provided the limiting case where the worker's employment has been terminated or otherwise 'determined' and where the worker could not fit within any of the other categories of exceptions under s 4(11)(a1), and this limiting case restricted entitlement to a two-month break between the termination and the re-employment.

32 The appellant submitted that sub-paragraph (vii) of s 4(11)(a1) underlined the approach to the construction of s 4(11)(a1) for which the appellant contended. That approach was in accordance with the orthodox tenets of statutory construction. First, the Act required an unbroken contract of employment that, nevertheless, may be interrupted - by contract or industrial instrument - by a term of the employment or industrial instrument. Alternatively, it required a series of contracts - such as those typical of the 'regular casual', or where there was a stand down of some kind, where there may be breaks but where any break was no longer than two months in duration. However, it was submitted, a stand down may be greater than two months where, for example, it had been caused by 'slackness of trade' and an interruption may be greater than two months where that 'interruption' was a term of the continuing employment of the employee - such as an ancillary staff member at a school (or perhaps university) or other institution which had a long vacation close down. These were the exceptions and none accommodated seasonal workers generally and in particular, seasonal workers of the kind under consideration here. 33 In summary, the appellant submitted that his Honour's approach to the construction of the Long Service Leave Act revealed significant errors. First, his Honour was in error to find 'continuous' employment under a single contract of employment because this finding flew in the face of clear evidence to the contrary about the drivers' employment contracts which employment was reflected in the industrial agreements.

34 Secondly, that his Honour disregarded entirely the relevant provisions of the Long Service Leave Act, which requires the employment, in the absence of a single contract, to be 'continuous' - as that word is understood according to its ordinary and accepted meaning. By definition, and under the accepted terms of their employment the drivers' employment was not continuous. It was necessary to turn to the extended meaning of 'continuous' under the deeming provision if the employment was to qualify. However, the extended meaning did not assist because the circumstances of seasonal employment did not fall within the exceptions set up by s 4(11)(a1). CASE FOR THE RESPONDENT

35 The TWU contended that the decision of Haylen J should be affirmed: (a) on the grounds stated in his Honour's judgment of 17 December 2008; or (b) in the alternative, upon the grounds that the drivers were entitled to long service leave by virtue of the operation of s 4(11)(a1)(v) and/or (vi) of the Long Service Leave Act 1955 ("the Act") (noting that the notice of contention procedure is not strictly available in this respect since different declaratory orders would be required to reflect this alternative outcome, but further noting that there is no impediment to the respondent relying on different grounds to support the first instance decision, particularly as those grounds were fully argued below: see Deltec International Courier Pty Ltd v TWU (1993) 50 IR 341 at 348-9). 36 The respondent addressed the meaning of the expression 'continuous service' as used in s 4(11)(a). It was submitted that it was wrong to suggest the term necessarily meant that the employment, in order to qualify as continuous, must be chronologically continuous in a strict or literal sense. Rather, s 4(11)(a) was to be construed as being concerned with a continuous pattern of employment over the requisite number of years, not a period of employment that was continuous in the narrow sense of not having any gap in time between one period of work and the next. 37 Accordingly, it was submitted, it could not be the case that 'seasonal work' was to be regarded as some separate species of employment that was excluded entirely from the scope of the Act. If the facts of the case permitted the employment, whether seasonal or otherwise, to be characterised as continuous, then the entitlement arose. Thus, for example, if an employee performed work pursuant to a contract of employment that expressly required the employee to perform seasonal work lasting nine months per year over a fifteen year period, that would qualify as 'continuous service' and give rise to an entitlement to long service leave - notwithstanding that the appellant might classify that as 'seasonal employment'. 38 Counsel for the respondent submitted that the premise that merely because a person was a seasonal worker - that is, a worker who is required to attend for work during the duration of a harvesting season - that person's employment necessarily ceased at the end of each harvesting season was wrong. There was no reason why a seasonal worker might not be the subject of an ongoing employment relationship that subsisted for many years and under which the employee was expected to attend for work for the duration of the season in each year. 39 It was further submitted the appellant proceeded on the flawed basis that the drivers were seasonal employees, that seasonal employment could never involve anything more than employment for the duration of a single season in a single year and, therefore, that any factual matter which was indicative of longer term, continuous employment may be dismissed as not fitting within 'this narrow, procrustean paradigm that the appellant has set up.' This approach, according to the respondent, ignored the reality of the drivers' employment - they worked consecutive seasons, year in, year out, for periods ranging from 12 to 24 years without ever having to re-apply for their positions and without there having ever been any real doubt that they would be employed each season for as long as the appellant held the sugar cane cartage contract. 40 The appellant addressed the factors identified by his Honour in [74] of the decision as forming the basis for the conclusion that the work of the drivers was continuous. The appellant contended that the significance of the factors referred to by his Honour was that, taken together, they supported the conclusion at [75] of the decision that the drivers were engaged in 'long term and ongoing, stable employment to be performed during the sugar cane seasons.' 41 For example, in relation to factors (a)-(c), it was submitted they demonstrated that none of the normal indicia attaching to the formation of a new employment relationship were present at or prior to the beginning of each season. There was no requirement to apply for the work, nor was there any process by which the work was offered and accepted. Unless the appellant raised an issue of unsatisfactory performance, work continued automatically year after year, only ceasing when the appellant lost its sugar cane cartage contract. It was submitted these factors collectively demonstrated that, subject to satisfactory performance, there was a mutual expectation that drivers would return to work the following year. This was supported by the fact that the appellant was obliged to notify any employee of unsatisfactory performance at the end of the sugar cane season. This provision, it was said, made no sense unless the employment was otherwise understood to continue for each season in each following year. 42 In any event, it was submitted, the appellant failed to acknowledge the significance of the fact that s 4(11)(a) did not require a single, unbroken contract of employment for there to be continuing employment. That is, even if it was accepted that there was a termination of the contract of employment at the end of the sugar cane season, that did not answer the question of whether there was continuing employment given that s 4(11)(a) expressly contemplated that continuing employment might occur under a number of different contracts. According to the respondent, this demonstrated that considerations other than the mere termination of an employment contract must be regarded as determinative of the existence or otherwise of continuity.

43 The respondent addressed his Honour's conclusion that an entitlement arose under s 4(11)(a1)(i) of the Act. It was noted that there was no challenge by the appellant to either the factual correctness of the matters identified by his Honour in [74] of his decision or their relevance as considerations in the decision-making process engaged in by his Honour. They were matters from which the inference may properly be drawn that, to the extent that the employment 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 necessarily contemplated by the terms of the employment. 44 The respondent referred to the appellant's contention that the drivers were employed on discrete contracts which expired at the end of the sugar cane season, so that the period between the seasons during which the drivers did not work could 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, the appellant contended, did not run between seasons). However, it was submitted this must be wrong. Section 4(11)(a) made it clear that the mere fact that there were a number of discrete contracts of employment did not mean that there was no continuity of employment. Therefore, the deeming effect of s 4(11)(a1)(i) could not be avoided merely by invoking the claimed existence of separate contracts of employment. That had 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. 45 The respondent referred to the appellant's acceptance of the proposition that both it and the drivers had a mutual expectation that 'they would return for work in the new season', but that the appellant dismissed this as a 'mere subjective expectation' which could not 'crystallise into a contractual (or other relevant) term of employment.' The respondent contended this was an artificial submission. The mutual expectation, it was submitted, arose out of the actual dealings between the parties over a long period of time. Those dealings demonstrated that the driver would, as a matter of course, commence work at the start of each season provided he was willing to do so and had not at the end of the preceding season been informed that his performance was unsatisfactory. They were the relevant terms of employment according to the respondent, and the mutual expectation of the parties was founded upon such terms. That being the case, any absence from work between the end of one season and the start of the next was one contemplated by the parties and consistent with their mutual expectations, it was submitted. 46 The respondent referred to Sugar Manufacturers. It was submitted his Honour's conclusion that it 'is of no assistance in determining the claims brought after the 1985 amendments' was correct for the following reasons: (a) The decision was made at a time prior to the enactment of the Act in 1955 (which made long service leave a community standard for the first time) and prior to the 1985 amendments. (b) At the time of the decision, the Industrial Arbitration Act 1940 required that " service " be provided under an unbroken contract of employment. Although a similar requirement applied under the Act when it was made in 1955, this requirement was abolished by the 1985 amendments, which permitted continuous service to be " under one or more contracts of employment ": s 4(11)(a).

(c) The decision does not disclose any reasoning for the proposition stated by De Baun J. It does not appear to have been the subject of any argument, and indeed appears to have been the assumption adopted by the award parties at that time. (d) Nor is it clear that De Baun J did not have before him material that made it entirely clear that the relevant sugar manufacturing workers worked under discrete contracts of employment each season. (e) In any event, the decision of De Baun J was not binding on Haylen J. 47 The respondent submitted that the conclusion that the drivers were entitled to long service could have been founded on the 'slackness of trade' ground in s 4(11)(a1)(v) either on the approach taken in Evans Deakin or in Solora South. 48 In relation to s 4(11)(a1)(vi), the respondent noted that Haylen J had found at [79] of the decision that the absence of the drivers from work might at best arguably be characterised as 'leave' for the purposes of that provision, but did not constitute the grant of leave in the strict sense. However, it was submitted it was incorrect to construe the provision by reference to the word 'leave' alone, since this connoted leave in the sense of annual leave and the like. The focus, it was submitted must be on the expression 'by leave of the employer'; this made it clear that the provision was referring to any absence from work with the employer's permission. Given the clear mutual expectation that the driver would return to work the following season absent any unsatisfactory performance, it was submitted any absence of work during the slack season could properly be characterised as something done with the employer's permission. CONSIDERATION

49 There is one matter that we need to deal with immediately and that is the appellant's complaint that despite the reliance by the respondent on subparagraphs (i), (v) and (vi) of s 4(11)(a1) in its pursuit of declarations of right, Haylen J decided that the claim was sustained under s 4(11)(a). The appellant submitted that 'there was no valid basis for his Honour to consider matters outside of the way in which the case was pleaded and run' and further that 'no evidence was led in respect of the matters that were the subject of the hearing and in the absence of that evidence his Honour speculated about the absence of evidence he took into irrelevant considerations and was in error.' 50 There was no issue that the respondent did not contend at first instance that an entitlement to long service leave arose under s 4(11)(a). Nevertheless, the respondent submitted the appellant was not relying on a denial of natural justice and that: [I]n determining the case brought by us below [his Honour] was entitled to consider whether he got to the deeming provisions at all having regard to the dictionary meaning of service. It's clear from the construction you don't get to the deeming provisions in (a1) unless you don't fit within (a). The mere fact that we raised and relied upon the deeming provisions meant his Honour, as a preliminary point, had to determine whether it got to it in the first place because of whether (a) applied or not. We say in the context of proceedings for declaratory relief his Honour is being asked to state how the Act applies to the facts presented, his Honour was entitled to consider a case about the application of the deeming provisions whether they applied, having regard to the primary provision in para (a).

In any event, the appellants have pointed out, there are written contentions before his Honour, did address the question of para (a) and to the extent they wanted to say anything further about that, they've had the opportunity in this appeal…. No legal consequence attaches to what has occurred. There's been no suggestion in relation to para (a) that there was some evidence which the appellant called below that it did not call because it did not perceive in the scope of the case. In any event, complaint of that nature presumably the appellant was seeking to adduce such evidence in the appeal itself. It hasn't sought to do so and it doesn't appear to have given any indication as we've understood their submissions, that the application otherwise of para (a) can't be determined on the basis of the evidence that was before his Honour. 51 We agree with that submission. It is quite clear there was no denial of natural justice and, in our opinion, there was evidence upon which Haylen J was able to determine whether an entitlement arose under s 4(11)(a). His Honour was quite meticulous in identifying those factors drawn from the evidence that led him to his conclusions. Whilst we do not agree with his Honour that the three drivers served their employer under unbroken contracts of employment for the reasons stated later in this decision, there was no prejudice to the appellant in the fact that his Honour's primary finding relied on paragraph (a). Rules of statutory construction 52 This matter falls to be determined according to the rules of statutory construction. The issue is whether service by three employees of the appellant engaged in performing seasonal work as drivers in the sugar cane industry in New South Wales qualifies for long service leave under the Long Service Leave Act. 53 Haylen J found that such service did qualify under the terms of s 4(11)(a) of the Act because the service was continuous service under one contract of employment or, in the alternative, under s 4(11)(a1)(i) because the interruption to the employees' service each year due to the off-season was 'caused by the absence of the worker under the terms of the worker's employment'. 54 The approach to be taken to statutory construction is a purposive approach: Interpretation Act 1987 at s 33, which states: In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. 55 In interpreting a statute the courts must determine what parliament meant by the words it used, not what parliament intended to say: Re Bolton & Others; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 at 459; Harrison v Melhem [2008] NSWCA 67 per Spigelman CJ at [14] and [16]. 56 The approach to statutory interpretation '(a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means ... one may discern the statute was intended to remedy': CIC Insurance Ltd v Bankstown Football Club Limited [1997] HCA 2; (1997) 187 CLR 384 at 408. See also Project Blue Sky Inc & Others v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]; Zoological Parks Board of New South Wales and Australian Workers' Union, New South Wales [2004] NSWIRComm 85; (2004) 135 IR 56 at [44]. 57 Extrinsic materials may be considered for certain specified purposes in ascertaining the meaning of legislation: see s 34 of the Interpretation Act. However, the content of any extrinsic material cannot be used to simply rewrite the terms of the statutory provision: Newcastle City Council v GIO General Limited [1997] HCA 53; (1997) 191 CLR 85 at 113 per McHugh J. Further, the history of the legislation, whilst not decisive in itself, may shed light on the intention of the legislature: Donald Gifford, Statutory Interpretation, (1990) Law Book Co at 91 and the cases referred to therein. Purpose of Long Service Leave Act 58 The purpose of the Long Service Leave Act is to provide paid leave for workers who have provided long service to an employer. As Haylen J observed, the purpose of long service leave was described as being 'a period of rest for the employee, so that he might recuperate after a long period of continuous service' or as providing a rest to employees to re-energise and recuperate after many years of loyal service to an employer. History of Long Service Leave Act

59 Until 1951, long service leave had been dealt with either by special Acts of Parliament relating to employment of public servants and other employees of State instrumentalities, or occasionally by awards for other employees. The Industrial Arbitration (Amendment) Act 1951 required tribunals to grant, upon application, long service leave to employees to the extent of three months' leave after 20 years' service, but this benefit was available only to employees who were covered by, or capable of being covered by awards of the State tribunals: see C P Mills, New South Wales Industrial Laws, 4th ed (1977) Butterworths at 599. 60 The Act extended those benefits to all employees in the State, while preserving the authority of the industrial tribunals to award more favourable benefits to employees subject to the Industrial Arbitration Act 1940: Mills at 599. The Act was amended in 1963 and again in 1967 by increasing the benefits. 61 Prior to 1985, when it was again amended in its current form, the Act relevantly provided in s 4(11): For the purposes of this section - (a) the service of a worker with an employer means the period during which the worker has served his employer under an unbroken contract of employment; Provided that a contract of employment shall be deemed not to have been broken by reason only of any interruption or determination thereof, whether occurring before or after commencement of this Act, if the interruption or determination: (i) has been made by the employer with the intention of avoiding any obligation imposed on him by this Act or by an award… or; (ii) has arisen directly or indirectly from an industrial dispute; or (iii) has been made by the employer by reason of slackness of trade; Provided further that the period during which the contract has been so interrupted or determined shall not by reason only of this paragraph be taken into account in calculating the period of service; … 62 At [68] Haylen J addressed, correctly we believe, the purpose of the 1985 amendments: 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.

We should note, however, that for the reasons later explained that in determining what is continuous employment s 4(11)(a) and 4 (11)(a1) have to be read together. Legislature's intention 63 It is clear from the second reading speech that parliament's intention was to overcome the type of problem that arose in Neill v Cameron [1977] AR (NSW) 505. In that case a shop assistant worked for more than 15 years. Her working days ranged from two and a half to four and a half days per week. She was paid throughout the period at the hourly rate prescribed by the relevant award for casual employees and an amount of holiday pay in accordance with the Annual Holidays Act 1944 payable to a worker whose employment is terminated at the end of a period which is less than one year. It was held that the informant had failed to prove that the worker had served the employer under an unbroken contract of employment for a period that would have entitled her to long service leave. 64 Similarly, the intention was to put beyond doubt that Mr Unsworth's tipster (see first instance decision at [56] and [58]) who worked two hours each Saturday morning for about seventeen years was entitled to long service leave. 65 It is quite apparent from the words of the provision, supported as they are by the parliamentary speeches, that the purpose of s 4(11)(a) in its present form was to overcome the limitations of its predecessor whereby a worker could only gain an entitlement to long service leave if he or she served under an unbroken contract of employment. That effectively excluded workers employed as casuals where the employment terminated at the end of each period of engagement, but who had an arrangement or understanding with the employer whereby they would continue to work on a regular basis, often over many years. However, the amendment was not limited to redressing the inequity associated with casual work because as the provision makes clear, it does not matter on what basis the service is provided, whether it be on a permanent, casual, part-time or 'any other basis'. 66 Thus, regardless of whether it is one contract or a series of contracts, prima facie, a seasonal worker who provides continuous service to an employer will be entitled to have that service counted for long service leave purposes pursuant to s 4(11)(a) of the Long Service Leave Act. Section 4(11)(a1)(vii) 67 The appellant has submitted, however, that the entitlement of a seasonal worker to have service counted for long service leave purposes is qualified by s 4(11)(a1)(vii). That is, if service has been interrupted or determined for a period longer than two months the continuity of the worker's service is broken. As the period between seasons in the sugar cane industry extended more than two months on each occasion it followed, according to the appellant, that neither Mr Bryant, Mr Bright nor Mr Hungerford had the necessary continuous serve to qualify for a long service leave entitlement. 68 Paragraph (a1) is a deeming provision that deems certain service to be continuous. Subparagraph (vii) provides that 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 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 two months of the date on which the service was interrupted or determined. 69 The respondent submitted that s 4(11)(a1)(vii) was in the nature of an anti-avoidance provision, in that it was designed to overcome the problem of an employer terminating the employment of an employee - for example just prior to the employee accruing an entitlement to long service leave - and re-employing them shortly thereafter, thereby breaking the service and avoiding liability for long service leave. 70 It was submitted for the respondent that the entitlement of 'regular casuals' was governed by s 4(11)(a) or, alternatively, s 4(11)(a1)(i) and not subparagraph (a1)(vii) on two bases: first that the express reference to casuals in s 4(11)(a) must be regarded as having some work to do. That is, if the intention was to have regular casuals dealt with by subparagraph (a1)(vii) there would have been no need to refer to casuals in paragraph (a). Secondly, it was clear from the parliamentary speeches that the intention was that the entitlements of casuals would be governed by paragraph (a). Reference was made to the Hansard record of the Minister's second reading speech, in the Legislative Assembly on 26 March 1985 in relation to the Long Service Leave (Amendment) Bill at 5051-52 and the speech by Mr Aquilina on 27 March 1985 at 5273 - 5275. The respondent referred to what Mr Aquilina said at 5275 in relation to subparagraph (vii) in support of the submission that provision was to be regarded as an anti-avoidance provision: Regrettably it has been the practice of employers to terminate the employment of persons just before their ten years eligibility for long service leave, and to re-employ them after they have broken their continuous service.

However, we note s 4(11)(a1)(iii), which provides, inter alia , that service will be deemed to be continuous if there is an interruption or determination 'made by the employer with the intention of avoiding any obligation imposed on the employer by this Act'. Nevertheless, it may be accepted there could be circumstances where an employer did not intend to avoid an obligation under the Act, in which case s 4(11)(a1)(vii) might apply. 71 The submissions suggest there are two ways of construing s 4(11)(a). Either in the manner proposed by the appellant or, alternatively, as the respondent has contended. The effect of the appellant's contention is to make s 4(11)(a) subject to s 4(11)(a1) and, in particular, s 4(11)(a1)(vii). The effect of the respondent's contention is that s 4(11)(a) stands to be construed alone, according to its terms.

72 According to the respondent, the employment contract of a seasonal worker might be terminated at the end of a season, but the service of that seasonal worker might, nevertheless, continue pursuant to the provisions of s 4(11)(a). Having regard to the problem the 1985 amendments were designed to overcome, that is the lack of access to long service leave entitlements for employees who did not serve under an unbroken contract of employment, it was submitted that service could be regarded as continuous for the purpose of s 4(11)(a) if there was 'a continuous pattern of employment over the requisite number of years, not a period of employment which is continuous in the narrow sense of not having any gap in time between one period of work and the next.' As we have already noted, the respondent submitted that s 4(11)(a1)(vii) was more in the nature of an anti-avoidance provision that was not directed at limiting the time in which an employee was to re-enter service or be re-employed in order for the service to be deemed continuous. 73 We disagree with the way in which the respondent would have us construe the relevant provisions in s 4(11). Section 4(11)(a) provides that 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. In our opinion, there is no basis upon which to construe the phrase 'continuous service' other than to give it its ordinary meaning. The word 'continuous' means 'having the parts in immediate connection, unbroken; uninterrupted in time'; 'without cessation' The Macquarie Dictionary, 3rd ed (1997) The Macquarie Library Pty Ltd. 'Service' in the present context means 'employment in any duties or work for another': (The Macquarie Dictionary). 74 Continuous service as that phrase is used in s 4(11)(a) means uninterrupted or unbroken employment. We note, of course, s 4(11)(a) provides that there may be continuous service under one or more contracts of employment, but in order to understand the obvious tension that exists between the two concepts of continuous service and service under more than one contract, s 4(11)(a) has to be read in conjunction with s 4(11)(a1), which is a deeming provision and enables service to be regarded as continuous notwithstanding that it may be interrupted by some occurrence (eg, an industrial dispute) or determined by the termination of the employment contract. Thus, despite multiple employment contracts, service may be continuous provided it may be deemed to be so under s 4(11)(a1). The fact that the legislature found it necessary to have a provision as to what service may be deemed to be continuous reinforces our view that s 4(11)(a) cannot be construed in isolation. 75 We observed earlier that the purpose of long service leave was to provide a period of rest for employees, so that they might recuperate after a long period of continuous service or to provide a rest to employees to re-energise and recuperate after many years of loyal service to an employer. Unless it could be regarded as service under an unbroken contract of employment, which we consider to be highly unlikely, we do not believe the legislature's intention was to provide long service leave to a worker who might, for example, be engaged as a fruit picker for 3 or 4 weeks at the same time each year for 10 years or more by the one employer in what might be described as a 'continuous pattern of employment', which according to the respondent would qualify under s 4(11)(a). 76 What the parliament was concerned about in enacting the 1985 amendments was to overcome the type of problem in Neill v Cameron where Ms Miller worked week in and week out for 15 years as a casual, but because her employment was terminated at the end of each period of engagement it was held she was not entitled to long service leave. Apart from the fact she was engaged as a casual and did not work a full five days each week (although she worked up to four and a half days per week), there was little to distinguish Ms Miller from a weekly employee working under an unbroken contract of employment. It could easily be said of Ms Miller that she should be entitled to long service so that she 'might recuperate after a long period of continuous service'. The same could not be said of the fruit picker in the example we gave above. 77 Ms Miller would qualify for a long service leave entitlement not because she worked according to a 'continuous pattern of employment' but because her service could be deemed to be continuous under the terms of s 4(11)(a1) and in particular under subparagraphs (i) or (vii). 78 Section 4(11)(a1) informs as to what may be treated as continuous service. So that service will be continuous notwithstanding the employee is absent under the terms of the worker's employment (paragraph (a1)(i)), or on account of illness or injury (paragraph (a1)(ii)), or for any cause by leave of the employer (paragraph (a1)(vi)), or where the interruption or determination is caused by the employer for any reason other than those referred to in subparagraphs (a1)(iii)-(v) (paragraph (a1)(vii)). However, if the worker does not return to service or is not re-employed within two months of the date on which the service was interrupted or determined for any of the foregoing reasons, the worker's service will be broken. 79 On the other hand, where the employment has been terminated by the employer with the intention of avoiding any obligation imposed on the employer by the Act (paragraph (a1)(iii)), or the employee's employment has been terminated because of involvement in an industrial dispute (paragraph (a1)(iv)) or because of slackness of trade (paragraph (a1)(v), there is no limit to the period of any interruption or determination. This may be because of the nature of the reasons for the interruption in the worker's service. 80 In any event, it cannot be the case that, in calculating a period of continuous service under s 4(11)(a), a period during which the employee was absent by leave of the employer (paragraph (a1)(vi)) would be a relevant consideration, but an interruption or determination caused by the employer for any reason other than those referred to in subparagraphs (iii)-(v) (paragraph (a1)(vii)) would not. It must follow that s 4(11)(a) is to be read subject to s 4(11)(a1)(vii). 81 We do not accept it was the legislature's intention that an interruption or determination of a worker's service, other than for the reasons referred to in s 4(11)(a1)(iii)-(v), could be for an open-ended period. Such a construction is not only inconsistent with the purpose underlying long service leave but it devalues the benefit. Take the fruit picker example: one month's employment out of twelve, even in a consistent pattern over 10 or more years, is not a proper basis upon which to justify leave for the purpose of allowing the worker to 'rest and recuperate after a long period of continuous service'. 82 That is why, in our opinion, the parliament limited the period of interruption to the service of a worker to two months in s 4(11)(a1)(vii). Such a limitation easily caters for the class of workers that were at the forefront of the parliament's concern in 1985, namely, regular or permanent casuals personified by Ms Miller in Neill v Cameron. And whilst the limitation might be arbitrary, indeed inequitable in some circumstances, it is not a matter for this Court to ignore the clear intention of the legislature. 83 Of course, we are here concerned with drivers who worked in a continuous pattern of employment for six months each year. Whilst their claim to a long service leave entitlement is more meritorious than the fruit picker, there is no basis, under the relevant provisions of the Act to distinguish between the two classes of workers. Putting to one side for the moment whether there was an unbroken contract of employment and assuming the employment of fruit picker and the drivers was terminated at the end of their respective seasons for reasons other than those referred to in s 4(11)(a1)(i) - (vi), the period between their termination and their re-employment next season both exceeded two months. Hence, on these assumptions their service must be regarded as having been broken. 84 We do note, by way of contrast to the position in New South Wales, and which may reveal a lacuna in the New South Wales Act, that in Victoria the Long Service Leave (Amendment) Act 2005 amended the Long Service Leave Act 1992 to amend the definition of 'employee' to include - in specific terms - a 'seasonal employee', and to amend the meaning of 'continuous service' so that: the employment of an employee who is employed by the same employer more than once over a period is to be regarded as continuous if the absences between instances of employment are due to the seasonal nature of the employee's employment (see new s 62A).

85 Also, s 50 of the Industrial Relations Act 1999 (Qld) grants long service leave entitlements to seasonal employees in the sugar industry and the meat works industry. Section 50(2) of that statute sets out a formula to calculate the long service leave entitlements of these seasonal workers. The formula is specifically tailored to seasonal workers to account for the fact that seasonal workers generally only work for part of a year, not a full year. It is interesting to note that the long service leave entitlement for seasonal workers is limited to employees in the sugar industry and the meat industry. In both those industries, the season runs for a significant proportion of the year such that these seasonal workers are more akin to full time employees. This may have been the reason, or part of it, for singling out seasonal workers in these two industries to receive a long service leave entitlement and not other categories of workers, for example, fruit pickers. Whether contract of employment unbroken

86 Against that background, we turn to consider the circumstances of the three drivers. We will deal first with the question of whether the contracts of the three drivers were unbroken contracts. We will then deal with the question of whether, on the evidence, the service of the three drivers may be deemed to be continuous under s 4(11)(a1) of the Long Service Leave Act. 87 As we have noted, Haylen J found that the three cane drivers served their employer under an unbroken contract of employment (see [76] of the first instance decision). On that point, we find we are in disagreement with his Honour. 88 The respondent submitted that the reality of the drivers' service was that they worked consecutive seasons, year in, year out, for periods ranging from 12 to 24 years without there having ever been any real doubt that they would be employed each season for as long as the appellant held the sugar cane cartage contract. That submission reflects the evidence. However, whilst the factors identified by Haylen J at [74] and [75] do support a conclusion that the drivers worked according to a regular and consistent pattern of employment over many years and that there was a mutual expectation that the drivers would work each season, the factors do not go so far as to support a finding that there was continuous service under an unbroken contract of employment. There are a number of reasons for arriving at this view and we shall proceed to explain them shortly. 89 Before doing so, however, we should indicate that the reasons we differ from his Honour are more than questions of 'fact and degree in respect of which views might legitimately differ': Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (1997) 37 ATR 528 at 533. It is because we consider his Honour erred in concluding there were unbroken contracts of employment. That the pattern of the drivers' service exhibited continuity does not equate to unbroken employment contracts, nor is it a question of degree as to whether continuous service at some point amounts to an unbroken contract of employment. It is a question of the proper construction of the relevant statutory provisions having regard to the evidence. We consider the evidence leads inevitably to the conclusion that the work was seasonal work and that at the end of each season the employment of the drivers was terminated and that employment re-commenced at the beginning of the next season. 90 We also acknowledge that the Act is a piece of social legislation that should be given a beneficial construction. However, any interpretation of the provisions of the Act 'must be restrained within the confines of the actual language employed and what is fairly open on the words used': Khoury (M & S) v Government Insurance Office of NSW [1984] HCA 55; (1984) 165 CLR 622 at 650.

91 The three cane drivers would have had a good case for long service leave entitlements on the basis of continuous service under multiple employment contracts but for s 4(11)(a1)(vii) and the reason explained earlier, namely, the period between their termination and their re-employment next season exceeded two months, thereby breaking the continuity of their service. There is one caveat, however, and that is in respect of Mr Hungerford where some of the evidence suggested he was working up to 11 months of the year, but the evidence does not appear to be sufficiently precise to allow any judgment to be made in respect of that driver.

92 We turn to the reasons for concluding the employment contracts of the three drivers were not unbroken contracts. 93 First, in 1984 a dispute arose between the TWU and the appellant regarding an entitlement to long service leave. The dispute is described at [40]-[41] of the first instance decision. The TWU's claim was that clause 24 of the Transport Industry (State) Award be varied 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. 94 It is to be noted that the claim was not based on the proposition that the workers were employed on an unbroken contract of employment, but rather that they should be entitled to long service leave as though their employment was continuous and unbroken, provided they are so engaged each sugar season. It is apparent from the transcript of the proceedings dealing with the claim that it was opposed by the employer for reasons that included that the legislation did not apply to seasonal workers because they were not employed under an unbroken contract of employment. As his Honour noted at [41], ultimately the TWU did not pursue the claim. 95 There was no evidence that between 1984 and when declarations were sought in this case, the appellant changed its position, by words or deeds, regarding the reason why seasonal workers were not entitled to long service leave. In light of that position, it is difficult to see how it could be said there was a mutual intention to create a legally enforceable bargain that involved the employment of seasonal workers on an unbroken contract of employment. In Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 at [25] the High Court (Gaudron, McHugh, Hayne and Callinan JJ said (references omitted): Because the search for the "intention to create contractual relations" requires an objective assessment of the state of affairs between the parties (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word "intention" is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties . (emphasis added) 96 What is more, the TWU also seemed to be of the view that it could not succeed on the argument that there was an unbroken contract of employment, either in 1984 or at the time it sought the declarations, because the declarations were not sought on the basis that s 4(11)(a) applied to the drivers.

97 Secondly, the practice of providing the cane drivers with a notice of termination and a separation slip at the end of each season paying out their accumulated annual leave and rostered day off entitlements was, in our opinion, more than an administrative act. It is not possible, on the evidence, to arrive at a conclusion that the parties intended a legal consequence fundamentally different from that which the practice demonstrated. That is, notwithstanding notices of termination and separation slips being provided to the drivers, and annual leave payments being made in accordance with the provisions of the Annual Holidays Act in respect of payments to be made on termination, the Court is asked to accept that the parties did not intend that which the documents and payments clearly represented, namely, termination of the employment. 98 If we were to accept his Honour's finding it would mean that the result would be that the appellant, having made a payment in respect of its liability for annual holidays to the three drivers over the many seasons of their engagement, would be liable for a breach of s 3(1) of the Annual Holidays Act for having failed to give the drivers an annual holiday on full pay. As the Full Bench said in Neill v Cameron at 508, that would be a 'startlingly unjust result'. In our opinion, the payments made pursuant to the Annual Holidays Act were a significant indicator that the drivers' employment came to an end at the end of each season and that a new period of employment commenced at the beginning of the next season: see Neill v Cameron at 508. 99 Thirdly, his Honour's finding that arrangements could be made for annual leave (and untaken rostered days off) to be held and taken at a convenient time, is based on evidence given by Mr Kelvin Mills in cross-examination to the effect that if a driver requested the company to hold holiday pay until they were away or during the slack season, then the appellant would try to be reasonable with the driver to meet the request on a one on one basis. The fact that the appellant attempted to accommodate a particular driver's request on a one on one basis, rather than strictly apply the general rule of paying out all accrued entitlements on termination, does not convert the seasonal employment into an unbroken contract of employment. 100 Fourthly, we note his Honour's finding that the 2001 agreement provided for weekly employment and required either party to give a week's notice to terminate the employment and that 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. However, clause 14 of the agreement provided that the work was 'seasonal work' and that '[e]ngagement will be by the week for the duration of the season and/or the availability of work'. During the season it would have been necessary to provide an employee with a week's notice in order to terminate the employment, but given engagement was 'by the week for the duration of the season' the engagement ended at the completion of the season unless some arrangement was entered into to provide work in the off-season. That the engagement might continue if other work was available simply meant that once that available work ran out the engagement would also conclude in the same way as it would at the end of a season. 101 The word 'engagement' may be used interchangeably with employment. 'Engagement' is defined, inter alia, as 'employment or a period or post of employment' (The Macquarie Dictionary). That is the sense we understand it to have been used in cl 14 of the enterprise agreement. Reference is made in cl 14 to 'casual hire drivers who will be engaged pursuant to cl 16'. Clause 16 provides that 'Casual hire drivers may be engaged by the hour and shall be paid a minimum of four (4) hours for each period of engagement.' Clearly, cl 16 is concerned with the period of employment of casuals. 102 We acknowledge 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. However, one has to weigh up that failure against the provision to the drivers of termination notices, separation slips and annual leave payments as well as the provisions of clause 14 of the agreement, which makes it clear that that the work was seasonal and engagement/employment was for the duration of the season and/or the availability of work. We consider the failure to give a week's notice in accordance with the terms of the agreement is outweighed by other objective factors pointing to termination of employment at the end of each season.

103 Fifthly, the accrual of sick leave from year to year was an entitlement that arose via an agreed variation to the Transport Industry (State) Award in 1986, to overcome the fact that cane drivers did not otherwise have an award right to accrue sick leave due to the seasonal nature of their work. That sick leave accumulated and carried over from year to year was not a factor pointing to an unbroken contract of employment. There was no indication that by agreeing to the variation it was accepted that drivers engaged in seasonal work from year to year were engaged on an unbroken contract of employment. Indeed, the sick leave variation was sought at the same time as the claim for long service leave in 1984. The award was later varied by consent in relation to sick leave, but not as to long service leave, as we have explained. 104 Sixthly, preference was given to existing drivers for work in the following season. The right to preference was provided by the 1999 and 2001 agreements. Clause 31 of the 2001 agreement provided: 31. Re-employment of seasonal drivers Preference shall be given to the re-employment of seasonal drivers over new applicants provided the following conditions are met: (i) At the end of each season, drivers will sign a drivers' book to indicate their intention to work the following season.

(ii) By Easter, drivers must have re-confirmed such an intention.

(iii) Drivers must attend the pre-season information meeting.

(iv) Drivers who have completed more than one cane season who are not being re-employed for the next season because of unsatisfactory performance shall be advised at the end of each season in writing. Such notification shall include details of the instances of unsatisfactory performance. Where the company believes a driver's performance is unsatisfactory, it will take all reasonable steps to inform the driver prior to the end of the season to allow the driver an opportunity to improve their performance.

(v) In the case of drivers who have not completed more than one full cane season that are not to be re-employed for the next season shall be advised at the end of the season in writing.

(vi) It is acknowledged that drivers have recourse to the disputes procedure contained in this Agreement to settle issues that may arise from the implementation of this clause. 105 The 're-employment of seasonal drivers' clause was an indication that if the appellant secured contracts the next year, the driver could expect to be preferred for re-employment for the next season. The fact that the clause was about 're-employment' suggests there was not an ongoing contract of employment that continued uninterrupted from season to season. 106 Seventhly, the fact that there was only one written application for employment upon initial engagement has to be seen in the light of the nature of the work. It was not surprising that a driver once known and tested for his suitability during his initial season would be preferred for work in subsequent seasons and would not be required to complete a new application. In this respect, the practice of signing the drivers' book at the end of the season had no additional significance since drivers who signed the book, as a matter of course, merely notified the appellant of their availability to be re-employed for a new season and were re-employed, unless advised that, because of misconduct/unsatisfactory performance, they would not be offered work. 107 Eighthly, the requirement that drivers 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 and the provision of detailed ongoing training, as well as the system of seniority, does lend support for the view that the appellant acknowledged there was continuity within its driver workforce that made itself amenable to the implementation of such as regular health checks and programs of ongoing driver training. However, whilst in conjunction with other factors these might point to a continuing employment contract, they may also be regarded as convenient and sensible measures to accommodate the fact that amongst its seasonal workforce the appellant had workers who consistently made themselves available for work each season. We favour the latter, especially as we have taken the view that other factors considered by Haylen J are at best either neutral or are contra-indicators. 108 Ninthly, the fact that 'slack season' or 'off-season' work was available, but was limited, and could not accommodate all the drivers, in our opinion indicated a lack of 'continuous employment' rather than an availability of such employment. Similarly, the commitment by the company in the 2001 agreement 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 before work was contracted out to other companies or businesses, tended to indicate an insufficiency of permanent employment opportunities.

109 The respondent referred to Ryde-Eastwood Leagues Club Limited v Taylor (1994) 56 IR 385 to support its submission that the drivers' employment was continuous. The case is authority for the proposition that the termination of employment of casuals subject to a continuing relationship that amounts to an on-going or continuing contract of employment will constitute a dismissal capable of attracting the Commission's unfair dismissal jurisdiction. In the course of its deliberation, the Full Bench cited with approval the decision of the Industrial Relations Commission of Victoria in Full Session in Licensed Clubs Association of Victoria v Higgins (1988) 4 VIR 43. Higgins also involved the question of whether a casual employee was engaged under an ongoing or continuing contract of employment. In that case the Full Session identified a number of tests for determining whether service had been given under a continuing contract or series of contracts. Two of those tests were 'Whether there was reasonable mutual expectation of continuity of employment' and 'Whether the worker reasonably expected that work would be available'. 110 It is trite law that it is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations: Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52; (2004) 219 CLR 165 at 179. As the High Court (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ) said in that case at [40]: What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction: Pacific Carriers Ltd v BNP Paribas [2004] HCA 34; (2004) 78 ALJR 1045 at 1050-1051. 111 It could not be said that the appellant had an expectation that there would be any continuity of employment as far as the three drivers were concerned. That was made clear as early as 1984. Further, it is not easy to accept that the drivers had an expectation of continuous employment, given their Union never claimed the drivers were entitled to long service leave on the basis of unbroken contracts of employment. The highest it can be put about expectation is that that there was a mutual expectation that the drivers would work each season. In any event, subjective beliefs and understandings are not the test. 112 There were no written contracts of employment between the drivers and the appellant. Of course, the terms of the contracts may be inferred or implied by law and from facts. To imply a term from facts it must be so obvious that it goes without saying: Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 207 at 227; Byrne v Australian Airlines at 442 per McHugh and Gummow JJ. That is not the case here. It is not at all obvious there was a common intention by the parties to enter into contracts of employment that remained unbroken despite the seasonal nature of the work on offer. 113 The industrial agreements that applied to the employment might be said to be somewhat ambiguous in that there was no unequivocal statement that employment ended at the finish of each season and re-commenced at the beginning of the next season. But a consideration of the agreements as a whole, for the reasons we have enunciated, leads inevitably to the conclusion that the intention was to cater for seasonal employment and not continuous employment. 114 If there had been a continuing obligation on the appellant to provide work for the drivers each year, rather than a mere expectation or if there was a continuing obligation on the drivers to re-present themselves for work or to accept it if it was offered, we would have expected the evidence to show that was clearly the case. The evidence did not do so: see Solora South Pty Ltd v McKendrick (1998) 85 IR 223 at 226-227. Robinson's case 115 Haylen J referred to the decision of the Chief Industrial Magistrate in Robinson v New South Wales National Coursing Association Ltd (1982) 3 IR 161. In that case it was held that Mr Robinson was employed as a greyhound 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. His Honour noted at [71]-[72]: 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. 116 The learned Chief Industrial Magistrate stated that the fact Mr Robinson's name appeared in the official program over many years as the identification steward was a 'very important factor' in him coming to the view that the contract of employment was unbroken. Moreover, any leave taken (albeit unpaid) was with the acquiescence of the employer. Importantly, the Chief Industrial Magistrate was not satisfied that Mr Robinson was paid annual holiday pay in accordance with s 4(3)(b) of the Annual Holidays Act (pro rata payment on termination of employment) on each occasion that he was paid, thereby distinguishing the case from Neill v Cameron and, indeed, the present case. 117 Haylen J observed that: 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. 118 If it were the case that the person working 40 days per year and the person working six or seven months per year were working under an unbroken contract of employment they would both attract an entitlement to long service leave subject to any other conditions that were required to be satisfied under the legislation. If they were not employed under a continuing contract of employment the provisions of s 4(11)(a1) would need to be considered, including s 4(11)(a1)(vii). 119 Mr Robinson was held, on the facts, to have been employed under a continuing employment contract. In our opinion, for the reasons we have given, the facts in the present case do not support a conclusion that the employment contracts of the three drivers were unbroken. Moreover, the service of the three drivers may not be deemed to be continuous because the period between the termination of their employment at the end of each season and the re-commencement of employment in the next season exceeded two months: s 4(11)(a1)(vii). Absence under the terms of the workers' employment - s 4(11)(a1)(i)

120 At [76] Haylen J concluded that s 4(11)(a1)(i) applied: 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 [factors supporting the conclusion that s 4(11)(a) applied] 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. 121 It may be seen that in concluding s 4(11)(a1)(i) applied his Honour considered the following factors, in particular, were relevant: (i) 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 work;

(ii) the expectation of both the employer and the drivers was that they would return for work in the new seasons;

(iii) the contention by the TWU that the work simply did not end with no-one contemplating further work;

(iv) the terms of "the agreement" expressly contemplated future work after a break when the current season ended;

(v) the absence of the workers during the off season was clearly contemplated by the terms of their employment;

(vi) the clear inference from all the evidence was that but for the lack of "off season" work, the drivers would be employed without a break for the full year. 122 Any inquiry about whether s 4(11)(a1)(i) applies must ask whether the interruption or determination breaking the worker's service was caused by the absence of the worker under the terms of the worker's employment. In other words, in order for s 4(11)(a1)(i) to apply, a term of the worker's employment must have caused the interruption or determination. The search, therefore, must be directed to the terms of the worker's employment. This would involve a consideration of the workers' contracts of employment (and a search for either an express or implied term) and the relevant industrial instrument. The term to be discovered would be to the effect that, 'It is a term of your employment that you will be absent for the period of the off-season'. 123 There was no express term in the employment contracts that could be said to have provided for an absence that caused the interruption to the continuity of the drivers' service; the contracts were not written contracts and there was no evidence of any such term made orally. There was no express term in the enterprise agreement or the Award that could be regarded as satisfying s 4(11)(a1)(i). Further, although as we said earlier, there were provisions that might be regarded as somewhat ambiguous on the issue of continuity, read as a whole neither the Award nor the agreement could be construed as intending that the seasonal nature of the work performed by the drivers was to be regarded as continuous service or unbroken employment. 124 The respondent, nevertheless, contended that the factors relied upon by Haylen J in concluding s 4(11)(a1)(i) applied: [W]ere matters from which the inference may properly be drawn that, to the extent that the employment 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. As we earlier observed, the relevant term may be implied in the contracts and that, of course, was what the respondent was submitting. 125 We dealt with implied terms earlier. In our opinion, having regard to the tests in Shirlaw, Byrne v Australian Airlines and BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266, it is not open to imply a term in the drivers' contracts to the effect that there was to be an absence for the period of the off-season and that we are to take it from that asserted implied term that the continuity of their service was not broken. For a term to be implied it must, inter alia, be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it, and the term must be so obvious that 'it goes without saying': BP Refinery at 26. 126 The contracts of employment, which we regard as multiple contracts commencing at the beginning of each season and ending at the completion of each season, were quite effective without a term that allowed for an interruption to service due to the absence of the worker during the off-season. Further, it could not be said that the term was so obvious it went without saying. It may well have been the case that the parties to the contracts contemplated - indeed expected - future work to be performed by the drivers. But it is another thing altogether to imply a term into the contracts that the interruption to the drivers' service during the off-season was merely an absence from their employment that did not break the continuity of their service. 127 In that respect, we would add that it is most likely s 4(11)(a1)(i) is directed to the interruption to service of an extant contract and is not relevant where there is a determination of a contract. The subparagraph is concerned with a term of the worker's employment. If the contract did contain a provision authorising absence in the off-season and at the end of the season the contract was terminated, the term dealing with absence would have no force or effect. But whether or not this is the case, it makes no difference to our conclusions regarding implied terms. Slackness of trade; absence by leave of the employer - s 4(11)(a1)(v) and (vi) 128 Haylen J was unable to conclude that s 4(11)(a1)(v) and (vi) applied in the circumstances of the cane drivers. In relation to slackness of trade (subparagraph (v)) his Honour said it: [A]ppears 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.

We agree with his Honour's analysis. 129 In relation to the absence of the worker for any cause by leave of the employer (subparagraph (vi)) Haylen J found 'the evidence does not disclose, in terms, any leave being granted by the employer in the strict sense.' We agree that was so. CONCLUSION

130 Regrettably, we have been led to the conclusion that on the available evidence that was before Haylen J and our view as to how the Long Service Leave Act is to be construed, that his Honour erred in finding that the three drivers were entitled to long service leave pursuant to s 4(11)(a) or, in the alternative, s 4(11)(a1)(i) of the Act. We say regrettably because in circumstances where seasonal workers work year in and year out for at least half of every year and do so without fail for many years it does raise the question of fair treatment. We noted earlier the provisions of the Victorian and Queensland legislation dealing with seasonal workers. ORDERS

131 The Full Bench makes the following orders: (1) Leave to appeal is granted. (2) The appeal is upheld. (3) The decision and orders of Haylen J made in Matter No IRC 1509 of 2007, except for order [92(d)], are set aside. JUDGMENT OF STAFF J 132 STAFF J. I have had the benefit of reading the draft judgment of Boland J, President and Backman J, in which their Honours set out the statutory provisions and other matters that provide the background to this appeal. I will not repeat that material, except where necessary to do so as part of my reasons. For the reasons given by their Honours, I would grant leave to appeal. I would add in this regard that the appeal gives rise to important issues of construction of the Long Service Leave Act 1955 ('the Act') and the general application of that statute in this jurisdiction. 133 However, with great respect to their Honours, I am unable to agree with the order proposed that the appeal be upheld. In my view, the conclusions reached by Haylen J are correct. I would, for the following reasons, propose that the appeal be dismissed. 134 The essential question for determination, as distilled by Haylen J at [73], was whether a seasonal worker(s) who provides continuous service to an employer (in this case for between 12 and up to 24 consecutive sugar harvesting seasons) will be entitled to have that service counted for long service leave. I agree with his Honour's characterisation. 135 The question may also be asked in light of the facts as to whether a worker who works for 24 consecutive sugar cane seasons where there was only one written application for employment upon initial engagement, a requirement to undergo a medical health check every three years and sick leave accumulated and carried over from year to year (to name some of the factors found by Haylen J at [74]), could in some way be said to fall outside legislation extending the benefit of long service leave to employees who are casuals. It would seem that if the legislation is to be construed otherwise, it would render such legislation nugatory and avoid the real and practical effect of the legislation. 136 The appellant does not take issue with any of the findings of primary facts made by his Honour. As his Honour correctly found, it is a question of fact whether the individual circumstances of a worker give rise to a determination that the worker's service with an employer was continuous service. His Honour set out the factors which resulted in the finding that the three sugar cane drivers rendered continuous service at [74]. This required a determination of whether the service of the sugar cane drivers which varied between 12 and 24 years, could be characterised as "continuous" under s 4(11)(a) of the Act. 137 The appellant contends first, that the sugar cane drivers are seasonal employees and therefore cannot be entitled to long service leave under s 4(11)(a) because by definition their employment is not continuous. Secondly, it is contended that the factual matters which may tend to indicate continuity on other bases can be dismissed or regarded as of little weight because they are inconsistent with the definition of "seasonal employment". Thirdly, it is contended that the employees cannot fall within the deeming provisions of s 4(11)(a1) as the factual matters are all consistent with seasonal employment which is by definition confined to a particular season. 138 In my view, these contentions are misconceived. Section 4(11)(a) is not concerned with the inclusion, or exclusion, of particular categories of employment. This is clear from the express language of the provision which must be construed beneficially as it is social legislation and there is no basis to read such legislation restrictively: see Capral Aluminium Limited v WorkCover of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [42], [43]; Re Transport Industry - Mutual Responsibility for Road Safety (State) Award and Contract Determination (No 2) [2006] NSWIRComm 328; (2006) 158 IR 17 at [111]; Endeavour Coal Pty Ltd & Ors v Construction, Forestry, Mining and Energy Union (New South Wales) [2007] NSWIRComm 70; (2007) 161 IR 96 at [44]. See generally articles by JJ Spigelman AC, "Working with Statutes" (2005) 79(12) Australian Law Journal 769; "Statutory Interpretation: Identifying the Linguistic Register" (1999) 4 Newcastle Law Review 1; "The Poet's Rich Resource: Issues in Statutory Interpretation" (2001) 21 Aust Bar Rev 224. 139 Relevantly, s 4 provides: 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, 140 Section 4(11)(a) is not concerned with the class or species of employment in which a particular employee may fall. The only requirement of the subsection is continuous service on whatever mode of employment is adopted by the employer or employee which may be under one or more categories of contracts of employment. 141 It is clear that the purpose of the 1985 amending Act was to include categories of employees previously regarded as excluded, in particular, regular or permanent casuals who are engaged on multiple contracts of employment. The appellant contends that this was achieved by reference to one of the deeming provisions, in particular, s 4(11)(a1)(vii). 142 In my view, it is clear from the text of s 4(11) and the Parliamentary debates that this result was intended to be achieved directly by s 4(11)(a), or alternatively, s 4(11)(a1)(i). The inclusion of regular casuals was not as a result of s 4(11)(a1)(vii). This is so because there is an express reference to casuals in s 4(11)(a) and it must be regarded as having some work to do. The deeming provisions found in s 4(11)(a1) define by extension s 4(11)(a). 143 Needless to say, the mere fact that a worker is referred to as a casual says nothing about whether they have continuous service or not. In Ryde Eastwood Leagues Club Ltd v Taylor (1994) 56 IR 385, the Full Bench at 401 observed: "It is apparent that two classes of employee colloquially described as "casual" can readily be identified in the organisation of industrial relationships. The first class refers to those employees who are truly casual in the sense that there is no continuing relationship between the employer and the employee. The second class is where there is a continuing relationship which amounts to an on-going or continuing contract of employment;... . Whilst the cross-over point between the above described classes may be difficult to ascertain, it being a matter of fact in each case, we are confidently of the view that the relationship particular to this case fell clearly within the class of an on-going contractual relationship so as to be within the Commission's remedial powers under the Act." 144 The Full Bench was hearing an appeal from a decision of a commissioner who had determined that an employee who was classified as a casual was in a continuing relationship which amounted to an ongoing or continuing contract of employment whereby the Commission had jurisdiction to hear and determine an application for reinstatement. 145 The Full Bench reviewed a number of authorities that considered the nature of casual employment, the tests to apply and the principles involved in determining whether such an engagement gave rise to an ongoing contract of employment. In particular, the Full Bench found compelling the decision and reasons of the Industrial Relations Commission of Victoria in Full Session in Licensed Clubs Association of Victoria v Higgins (1988) 4 VIR 43 at 49, 54, 55 - 57. This case required the Industrial Relations Commission of Victoria to consider whether or not there had been a dismissal within the meaning of the Victorian Act. The Full Session in Licensed Clubs Association of Victoria v Higgins observed (at 49, 54, 55): "... In order to establish whether service has been given under a continuing contract or series of separate contracts it is necessary to examine the facts as to the relationship.

... 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:

2. The appeal is dismissed. 161 PRESIDENT: The Orders of the Court are, therefore, those set out in paragraph [131] of the joint judgment.

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