Superannuation - Benefits - Matters affecting entitlement to and payment of - Other matters - Temporary employee - Right to become contributor to scheme if certificate stating likely to remain in employment for at least three years - Loss of right otherwise than through own fault - Power to permit exercise of lost right.

Retirement Benefits Regulations 2005 (Tas), regs123, 127.

Judgment Number: [2013] TASSC 22

1 On 11 March 1991 the respondent, Geoffrey Elmore, commenced employment in a temporary full-time position as a teacher at the Launceston College of TAFE. He has been employed by the State Government doing essentially the same sort of work ever since. His employment became permanent with effect from 30 June 1994. He became a contributor to the Retirement Benefits Fund ("RBF") contributory superannuation scheme with effect from that date. In October 2011, he made an application to the Retirement Benefits Fund Board. That Board is the applicant in these proceedings. By his application Mr Elmore sought, in effect, to receive the benefits that he would have received if he had joined the RBF contributory scheme with effect from 11 March 1992, one year after his temporary employment commenced. His application was made under reg123 of the Retirement Benefits Regulations 2005. The Board decided to refuse his application. Pursuant to reg127(1) of the 2005 regulations, Mr Elmore required the Board to apply to this Court for a declaration in respect of its final decision. The Board contends that I should affirm its decision. Mr Elmore contends that I should set the decision aside, and substitute a decision whereby he will receive the benefits that he applied for.

2 The material provisions in reg127 read as follows:

"(1) If the Board has made a final decision under regulation 126 adversely to an applicant, he or she may, within 6 months after notification of the final decision, require the Board to apply to the Supreme Court for a declaration in respect of that final decision.

(2) Subject to subregulation (3), the Supreme Court may, on an application under subregulation (1), make a declaration, having regard to facts existing and events that had occurred at the time when the Board's final decision was made, as to the validity or otherwise of that final decision.

(4) For the purpose of reviewing a final decision by the Board, the Supreme Court has all the powers and discretions that are conferred on the Board by law or under the Act.

(5) The Supreme Court may make a declaration -

(b) remitting the matter to which the Board's final decision relates to the Board for reconsideration in accordance with the directions of the Court; or

(d) setting aside the Board's final decision and substituting another decision for that final decision of the Board.

3 It is clear that the jurisdiction to be exercised by the Court when reviewing a decision of the Board under reg127 is very similar in nature to the jurisdiction of the Administrative Appeals Tribunal (Cth) which was under consideration in the Full Court of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577. In that case, at 589, Bowen CJ and Deane J explained the nature of the review proceedings as follows:

"The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal."

See also Loudon v Retirement Benefits Fund Board [1993] TASSC 144 at pars[35] - [42]; A101/1993 at 7, 8.

4 It follows that, in proceedings before this Court under reg127, the question for determination is whether the decision under review was the correct or preferable one on the material before the Court. That material includes the material that was before the Board. The review must be by way of a hearing de novo on the merits. It may be that neither party bears an onus of proof in the usual sense. However, in practical terms, the respondent has the burden of adducing sufficient evidence to support findings of fact favourable to him: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354.

5 Mr Elmore relies upon s5 of the Retirement Benefits Act 1982 ("the 1982 Act"). That Act was in force whilst he was a temporary employee, but has since been repealed. In essence s5 provided that temporary employees in Tasmania's public sector could elect to become contributors to the RBF contributory scheme once they had completed 12 months' continuous temporary employment if a certificate was issued stating that a further three years' continuous temporary employment was likely. Such a provision had existed under earlier legislation since 1974: Retirement Benefits Act 1970, s2AA, inserted by the Retirement Benefits Act (No 2) 1974. The 1982 Act introduced a new provision, s6, whereby a temporary employee could elect to become a contributor after four years' continuous service, without the need for any certificate.

"(1) A person who is not an employee, but is employed in a temporary capacity, may elect to become a contributor if during the past 12 months he has been continuously employed in a temporary capacity and a certificate is issued by the appropriate authority, in accordance with this section, stating that he is likely to remain in employment for at least 3 years.

(2) A certificate shall be issued for the purposes of subsection (1) if, and only if, it appears that the person to whom it relates will be continuously employed in a temporary capacity for the 3 years next ensuing or until he becomes an employee otherwise than by virtue of this section.

(3) An election under subsection (1) shall be by notice in writing to the Board accompanied by the certificate referred to in that subsection.

(4) On the making by a person of an election under this section, he shall be deemed to become an employee within the meaning of this Act and to remain such an employee so long as he is employed in a temporary capacity or as an employee.

(5) For the purposes of this section, a person shall be deemed to be employed in a temporary capacity if he is employed in such circumstances that, had he been so employed in a permanent capacity, he would have been an employee within the meaning of this Act and, in relation to a person so employed, the appropriate authority means -

(a) if he is an employee, within the meaning of the Tasmanian State Service Act 1984, the Minister administering that Act;

(b) if he is a police officer, the Commissioner of Police;

(d) [sic] if (not being a person referred to in any of the foregoing paragraphs of this subsection) he is so employed by any authority or body, that authority or body; or

(e) in any other case, such authority as may be prescribed in the regulations in his case.

(6) A certificate signed by a person authorised in that behalf by an appropriate authority shall be deemed for the purposes of this section to be a certificate issued by that authority."

7 The Board has powers to reinstate lost rights pursuant to reg123 of the 2005 regulations. That regulation reads as follows:

(1) If the Board is satisfied, after such inquiry as it thinks fit, that -

(a) a person has, otherwise than through his or her own fault, lost or ceased to be entitled to a right, privilege or benefit under -

to which he or she was otherwise entitled or might have obtained; and

(b) it is equitable that he or she should be allowed to have the enjoyment of that right, privilege or benefit -

the Board, with the approval of the Minister, may permit that person to exercise the right or grant to him or her the privilege or benefit, notwithstanding that the time prescribed for doing any act in respect of the entitlement may have expired.

(2) The Board must not exercise its powers under subregulation (1) -

(a) so as to allow a person who, at the time when the Board makes a determination under that subregulation, is not an employee to become a contributor; or

(b) so as to allow a person who is no longer a contributor to effect a change in the date on which he or she became a contributor; or

(c) so as to allow a person to utilise a percentage calculated, or factor determined, by the Actuary which is not the relevant percentage or factor in force at the time of the Minister's approval.

(3) The Board, in the exercise of its powers under subregulation (1), may impose any conditions and requirements that it considers just and the Minister approves."

8 Mr Elmore's principal contentions in these proceedings can be summarised as follows:

• Once he had completed 12 months' service as a temporary employee, and at all times that he continued to be a temporary employee, he was "likely to remain in employment for at least 3 years" within the meaning of s5(1).
• From the time he completed his first 12 months' service as a temporary employee, and at all times that he continued to be a temporary employee, it appeared that he would be "continuously employed in a temporary capacity for the 3 years next ensuing", or until he became a permanent employee.
• He was therefore entitled, as from 11 March 1992, to the issue of a certificate under s5.
• Within the meaning of reg123(1)(a), he lost or ceased to be entitled to a right, privilege or benefit under the 1982 Act as a result of not seeking and obtaining a s5 certificate, and not electing to become a contributor to the relevant scheme.
• That occurred otherwise than through his own fault.
• He was entitled to such a right, privilege or benefit. Alternatively, he might have obtained such a right, privilege or benefit.
• Within the meaning of reg123(1)(b), it is equitable that he should be allowed to have the enjoyment of that right, privilege or benefit.

9 The principal contentions of the Board in these proceedings are as follows:

• During the period from 11 March 1992 to 30 June 1994, it was never "likely", within the meaning of s5(1), that Mr Elmore would remain in his employment continuously for at least three further years.
• During that period, it did not ever appear that Mr Elmore would be continuously employed in a temporary capacity for a further three years or until he became a permanent employee.
• The prerequisites for the issue of a s5 certificate therefore were never satisfied.
• Even if the requirements of s5(1) and (2) were satisfied, Mr Elmore did not lose or cease to be entitled to any "right, privilege or benefit" to which reg123(1) applied.

What was likely or apparent between 11 March 1992 and 30 June 1994?

10 After Mr Elmore left school, he worked full-time for 22 years for a motor dealer in Launceston as a motor mechanic. He became the workshop foreman during that period. He next worked for another employer for three years as a marine motor mechanic. During that time he obtained a further qualification - a small engine certificate. He obtained his position as a teacher at the Launceston College of TAFE as a result of being "head-hunted". After he commenced that employment there was never any change in the demand for his services, nor any problem as to the performance of his duties, nor were there any personal reasons why he might ever have been considered unsuitable to continue that employment, or have wished to leave it. He was not promised permanent employment before obtaining it.

11 The evidence before me establishes that Mr Elmore was initially employed for a period from 11 March 1991 until 24 May 1991, with subsequent extensions as follows:

• From 25 May 1991 to 20 December 1991.
• From then until 18 December 1992.
• From 19 December 1992 until 17 December 1993.
• From 18 December 1993 until 30 June 1994.

12 In letters to Mr Elmore concerning the last two of those extensions, it was stated that his temporary employment could be terminated, either by him or by the relevant department, on 14 days' notice. Section 38(7) of the Tasmanian State Service Act 1984 empowered the relevant Minister, Mr Elmore's Head of Agency, and their delegates and nominees to terminate his employment as a temporary employee, subject to any applicable provisions in an industrial award.

13 The Board was provided with a statement by a Mr McLaughlin, who was the principal of the Launceston College of TAFE and, after a name change, the Director of the Launceston Institute of TAFE, holding those positions from 1983 to at least 1994. Part of that statement read as follows:

"Launceston Institute of TAFE was a centre of excellence in both automotive and metal trades. This occurred as a result of a decision to rationalise TAFE resources in the early 1990s. The size of the centres other than Launceston was reduced and a number of the staff at those centres were given the option of moving to Launceston or obtain redeployment to other positions of employment.

It was clearly understood by supervisors and managers that no temporary employee could be told that their employment was guaranteed, or could be guaranteed to be fulltime. I, and to the best of my knowledge any of the other managers under my supervision, were not aware of any of the RBF regulations governing the entitlements of temporary employees in regard to joining the RBF contributory scheme nor were we required to do so.

There was no reason for TAFE managers to be reluctant to state that a temporary employee's ongoing employment was likely after all part of our job as managers was to forecast and plan for the future. While it was always clear that ongoing employment could not guaranteed [sic] to persons filling temporary full or part-time positions I would not have regarded it a breach of the prohibition against giving such guarantees, to acknowledge that ongoing employment was a likelihood if our forward planning indicated the possibility.

In the period from 1987 to 1994 inclusive, had I been asked whether for the temporary full time teachers in Automotive and in Metal Trades continuing employment for three years was likely, I would have indicated that it was. I had no reason during that period for thinking that any one of them would lose their job."

14 The Board was also provided with a statement by a Mr Willie, who was working at the Launceston TAFE during the relevant years, and was the Associate Director (Programs) of Automotive Services in 1993. Part of his statement read as follows:

"I recall that we supervisors and managers had been strictly instructed not to tell any temporary employee that continuous permanent employment was guaranteed or could be guaranteed to be fulltime. I was not told, and to the best of my knowledge no other supervisors were told, that the relevant RBF regulations do not require a guarantee but only a statement of the likelihood of continuing employment for eligibility for access to RBF. I had never been shown the relevant RBF regulation.

Had I been asked in 1991, 1993 or later, whether continuing employment for the temporary full time teachers for three years was likely I would have been confident in saying that ongoing employment for that three year period would be likely.

At around that time the Launceston TAFE had been made the state centre of excellence for all Automotive mechanical and Automotive electrical, Trades. It was the training centre for Automotive trades apprentices for the whole state. The centres which had previously operated in Hobart Devonport and Burnie were closed down to Automotive mechanical and electrical apprentice training. When the other three centres were closed to apprentice training some of the staff employed at those centres chose not to move to Launceston and were either redeployed into other jobs or left the TAFE employment entirely. As a result of this, in 1991 quite a few teachers had been recruited at Launceston. The change in automotive occurred because motor vehicles were becoming more technically sophisticated and it was too expensive to duplicate all of the equipment necessary to provide adequate training to apprentices at 4 separate centres. A modern well equipped centre had recently been built at Launceston and this led to the decision to make Launceston the centre of automotive training. It was not easy to find replacement teachers and so as managers we preferred to keep the staff we had if possible because of the difficulty in replacing them."

15 The facts asserted by Mr McLaughlin and Mr Willie are apparently not in dispute, but the Board has consistently taken the view that Mr Elmore's employment was truly temporary during the relevant period; and that Mr Elmore did not satisfy the requirements of s5(1) and (2) during that period.

16 The Board was provided with a letter dated 17 August 2005 from a person named Terry Woodward in the Human Resources Branch of TAFE Tasmania. That letter included the following:

"As stated previously it would have appeared that the agency ( Education and later DEIRT ) had a policy of employing staff on temporary contract (s) rather than making its staff permanent. These contracts were usually for a maximum of twelve months and usually ran for the calendar year, often being 'rolled' over at its conclusion. Records on individual personnel files often quoted that permanency wasn't granted due to funding issues.

Using the above criteria regarding employment practices, it would have been highly unlikely that the agency would have issued any certificates to the RBF indicating that staff would have been guaranteed employment for a further 3 years." (Original emphasis.)

17 It is clear from the evidence before me that, at least as a general rule, it was considered by the authorities that a s5 certificate should not be issued to a temporary employee unless that person had "guaranteed" employment for a further continuous period of three years or more. Counsel for the Board referred me to a case in which evidence of that nature was considered: Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170. In that case former employees of the Hydro-Electric Commission ("the HEC") applied to the Federal Court, contending that there had been breaches of various duties in respect of their superannuation rights. At 231 - 232, Heerey J set out the text of a letter from a retired HEC industrial officer which included a paragraph reading, "As from 1974 a temporary employee could apply for admittance after 12 months service if the employer guaranteed a further 3 years service." On the same page, his Honour said the following in relation to that letter:

"Mr Taplin's letter of 8 May 1995 was written when he had been retired from the Hydro for seven years. Yet it is precise and accurate as to RBF Scheme entitlements."

18 However I do not regard that comment as authority for the proposition that, on a proper construction of s5(1) and (2), a certificate could properly be issued only if the employer of a temporary employee "guaranteed" a further three years' continuous employment. The degree of certainty required by s5(1) and (2) was not an issue in that case. What is clear, however, is that the view stated in the letter was taken by the officers responsible for the issue of such certificates.

19 It is clear that, during the relevant period, Mr Elmore did not ever have a contractual right to employment beyond a fixed date. It is clear that he was never promised or offered "permanent" employment. There is no evidence that anyone in authority ever encouraged him to think that his employment was other than temporary. However, in my view, it does not follow that he was necessarily not entitled to obtain a certificate under s5, and then to elect pursuant to s5(1) to become a contributor to the relevant scheme.

20 This case raises questions as to the proper construction of s5(1) and (2). It is worth repeating some statements of principle that have been made in the High Court about statutory interpretation. In Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129 at 161 - 162, Higgins J said:

"The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable."

21 In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at par[78], McHugh, Gummow, Kirby and Hayne JJ said (omitting footnotes):

"However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning."

22 In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at par[47], Hayne, Heydon, Crennan and Kiefel JJ said (omitting footnotes):

"This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy."

23 In determining the meaning of words in one subsection, those words "must be read with and accommodated to the rest of the section": Taylor v Public Service Board (NSW) [1976] HCA 36; (1976) 137 CLR 208 per Barwick CJ at 213.

24 A certificate under s5 was required by s5(1) to state that the employee in question was "likely" to remain in employment for at least three years. That requirement must be taken into account for the purpose of interpreting s5(2). That subsection used the words "appears" and "will be". The subsection required a s5 certificate to be issued "if, and only if, it appears that the person to whom it relates will be continuously employed in a temporary capacity for the 3 years next ensuing ...".

25 Read in context, I think s5(2) should be not interpreted as requiring a certificate to be issued only when a person had a contractual right to three further years' continuous temporary employment, or some sort of "guarantee" of three further years' continuous temporary employment. Bearing in mind that s5(1) required the certificate to state that a certain state of affairs was "likely", I think that s5(2) required the "appropriate authority" to determine what appeared to be likely to happen. If it was likely that a particular employee, employed in a temporary capacity, was going to remain in employment continuously for at least another three years, in the sense that it appeared that that person would be continuously employed in a temporary capacity for at least that long, then the requirements of s5(2) were satisfied, and the appropriate authority was required to issue a certificate, even if the employee had no contractual right to, or promise or "guarantee" of, three further years' continuous employment.

26 The 1982 Act was beneficial legislation, enacted for the benefit of employees. Its purpose was to make financial provision for employees and their families. The interpretation of s5(1) and (2) that I have adopted is consistent with the principle that, if there is any ambiguity, such legislation should be construed beneficially and not given a narrow or restrictive interpretation: Bull v Attorney-General (NSW) [1913] HCA 60; (1913) 17 CLR 370 at 384. It is also consistent with the requirement of the Acts Interpretation Act 1931, s8A(1), that an interpretation that promotes the purpose or object of the Act is to be preferred to one that does not.

27 At all times during the relevant period, it was technically possible that Mr Elmore's employment would expire and not be renewed. It is likely that officers of the State had the right to dismiss him without waiting for his term of employment to expire. Dismissal or non-renewal of his employment might have occurred if there had been severe Government funding cuts. But the available evidence concerning Mr Elmore, his work, and the circumstances in which he was employed satisfies me that any such development was most unlikely. In the light of that evidence, particularly the passages that I have quoted from the statements of Mr McLaughlin and Mr Willie, I am satisfied that, at all times from 11 March 1992 to 30 June 1994 inclusive, it was apparent that Mr Elmore would, in the words of s5(2), "be continuously employed in a temporary capacity for the 3 years next ensuing" or until he became a permanent employee.

28 I am satisfied that no other conclusion would have been reasonably open to the "appropriate authority" if Mr Elmore had sought a s5 certificate at any time during that period. The evidence before me very strongly suggests that, if Mr Elmore had in fact sought such a certificate during that period, the authorities would have taken a very different approach to the interpretation of the legislation from my approach, and he would have been refused a certificate. That is not to the point. Throughout the relevant period he satisfied the requirements of s5(2); he was entitled to a certificate under s5; and with such a certificate he would have been entitled to elect pursuant to s5(1) to become a contributor to the relevant scheme.

29 Mr Elmore can succeed in this case only if he satisfies reg123(1)(a) of the 2005 regulations. That is to say, he can succeed only if he, "otherwise than through his ... own fault, lost or ceased to be entitled to a right, privilege or benefit under ... the Retirement Benefits Fund Act 1982 ... to which he ... was otherwise entitled or might have obtained". He contends that nobody told him anything about any possibility of him joining the relevant scheme while he was a temporary employee, and that, as a result, he lost the right to obtain a s5 certificate and also the right, once he had that certificate, to elect pursuant to s5(1) to become a contributor to the relevant scheme.

30 The word "right" can have a wide variety of meanings. See In re K D [1988] 1 AC 806 at 825. The 2005 regulations, like the 1982 Act, constitute beneficial legislation that is intended to benefit employees and former employees. Regulation 123(1)(a) should therefore be given a beneficial interpretation, and not a narrow or restrictive interpretation.

31 In my view s5(2) of the 1982 Act did not confer a discretion on the "appropriate authority" to issue or refuse certificates. It required that authority to make a value judgment as to whether it appeared that the person in question would be continuously employed in a temporary capacity for the three years next ensuing, or until that person became a permanent employee. If that did not appear to be the situation then, because of the words "and only if" in s5(2), the "appropriate authority" had no power to issue a certificate. If that did appear to be the situation, the section gave the "appropriate authority" no choice because it began, "A certificate shall be issued ...". If, in a particular case, only one view of what appeared to be going to happen was reasonably open to the "appropriate authority", then that authority was obliged to make a determination in favour of the relevant employee and issue a certificate. For the reasons stated above, I consider that this was such a case. If the "appropriate authority" had been asked to issue a certificate, it would have been obliged to consider the available evidence, reach the inevitable conclusion, and issue the certificate. In those circumstances, I consider that Mr Elmore had a right to obtain a s5 certificate.

32 Counsel for the Board submitted that Mr Elmore did not ever have the right to become a contributor to the relevant scheme because he did not ever obtain a s5 certificate. In one sense, it could be said that Mr Elmore had the right to do two things: first, to obtain a s5 certificate; and then, only after he obtained the certificate, to elect to become a contributor. Giving the regulation a beneficial interpretation, I consider that, Mr Elmore should be regarded as at all material times, having had the right to take those two steps. In my view such an interpretation is consistent with the language of reg123(1)(a), and should be preferred to the interpretation of the word "right" urged upon me by counsel for the Board.

33 Thus Mr Elmore at all material times had the right to become a contributor by taking the two necessary steps. That was a right to which he was entitled because of his prospects for continuous further employment and the provisions of s5.

Did Mr Elmore lose a right otherwise than through his own fault?

34 Mr Elmore contends that he lost the right to become a contributor because he was never told of that right. The question of the extent of his knowledge about that right was explored during the hearing before me.

35 There was evidence that some temporary employees were sent letters about their RBF entitlements by an officer of the State Superannuation Office on or about 22 February 1991, but Mr Elmore said that he received no such letter. A copy of a letter received by another temporary employee was in the material before the Board. That letter contained a paragraph about the right of a temporary employee to elect to join the RBF under s5. When Mr Elmore gave evidence before me, counsel for the Board cross-examined him about a document that purported to be a copy of an identical letter dated 10 April 1991 that was addressed to him at the address in Trevallyn where he was living at that time. He said that he could not recall receiving that letter; that he would have kept it if he had received it; that it would have been kept in a file that he kept containing documents to do with the subject matter of this case; and that he had not brought that file to Court. I think that Mr Elmore would have remembered receiving that letter if he had received it, and that he was an honest witness. I am therefore satisfied on the balance of probabilities that he did not receive that letter.

36 Even if I am wrong as to that, I still think it can be said that Mr Elmore was not at fault in relation to his loss of the right to become a contributor. The critical paragraph in the letter read as follows:

"A temporary employee may elect in writing to join the Retirement Benefits Fund provided he/she has completed twelve months continuous service and the agency/employing authority will certify a further three years' employment or where four years' continuous service has been completed."

37 That paragraph did not contain information as to what degree of certainty was required for a certificate as to a further three years' employment. It did not say that the certificate needed only to state that the employee was "likely" to remain in employment for at least three years. It did not state that such a certificate had to be issued if it appeared that the person in question would be continuously employed in a temporary capacity for the following three years. Because of the absence of those pieces of information in the letter, and because of the prevailing view that three further years' continuous temporary employment needed to be "guaranteed" before a certificate would be issued, I do not think Mr Elmore could be said to have been at fault if he had received that letter and not then set about trying to become a contributor to the relevant scheme.

38 Under cross-examination, Mr Elmore said that he received information from his union about RBF arrangements. Initially he said he was sure that that information would have been provided after he and others became permanent employees, but later he conceded that it may have been provided before then. If accurate information about the rights of temporary employees under s5 was provided by the union to Mr Elmore before he became a permanent employee on 30 June 1994, I think that makes no difference. In my view it can still be said that, because of the prevailing view as to three further years' temporary employment needing to be "guaranteed", he was not to any extent at fault in failing to make efforts to obtain a s5 certificate and elect to become a contributor.

Is it equitable that Mr Elmore should have the enjoyment of his lost right?

39 In the circumstances, I think it must follow, as night follows day, that it is equitable that Mr Elmore should be allowed to have the enjoyment of the lost right, ie that he should be allowed to become a contributor to the relevant scheme with effect from a date prior to when he became a permanent employee.

40 I accept that, if he had been aware of his rights, and if the rights of temporary employees had been given proper recognition, Mr Elmore would have sought to obtain a s5 certificate, and to become a contributor, as soon as he could. I also accept that it would have taken him some time to obtain the necessary certificate. Counsel for the Board suggested that it would have taken him from 11 March 1992 until about the end of that financial year. I think that would have been too long. In the circumstances, I consider it equitable that he should have the enjoyment of his lost right with effect from one month after the first anniversary of his commencing temporary employment, ie with effect from 11 April 1992.

41 Under reg123(1), if it is satisfied that it is equitable that a person should be allowed to have the enjoyment of a lost right, the Board, subject to the approval of the Minister, "may" permit that person to exercise that right. Standing in the shoes of the Board, I see no reason not to exercise that power in Mr Elmore's favour, and thus to do what is equitable.

42 In the proceedings before the Board, Mr Elmore contended that he lost not only the right to become a contributor to the scheme, but also a right to "buy back years of service", apparently under s29 of the 1982 Act. In the proceedings before me, the Board did not contest the proposition that, if Mr Elmore was successful in the proceedings in relation to the loss of the opportunity to become a contributor whilst a temporary employee, then he should also have restored to him the opportunity to "buy back service at the 1993 concessional rates".

43 Under reg123(1), the Board may make a decision permitting a person to exercise a lost right only with the approval of the Minister. It follows that I could make such a decision, standing in the shoes of the Board, only with the approval of the Minister. To the best of my knowledge, the Minister's approval has been neither sought nor granted. I therefore think the preferable course is to proceed under reg127(5)(b) by remitting the matter to the Board for reconsideration in accordance with appropriate directions. It is implicit in the regulation that the Board's original decision must be set aside if that course is to be taken. I see no need to give a direction about the "buying back" of years of service.

1. That the determination of the applicant relating to the respondent made on 21 December 2011 be set aside.
2. That the matter to which that determination relates be remitted to the applicant for reconsideration in accordance with the following directions:

(a) The respondent has, otherwise than through his own fault, lost a right under the Retirement Benefits Fund Act 1982 to which he was otherwise entitled, namely the right to obtain a certificate for the purposes of s5 of that Act and to elect to become a contributor pursuant to s5(1) of that Act.

(b) The respondent had that right from 11 March 1992 until 30 June 1994 inclusive.

(c) It is equitable that the respondent should be allowed to have the enjoyment of that right with effect from 11 April 1992.

(d) Subject to the approval of the Minister, the Board must permit the respondent to exercise that right with effect from 11 April 1992.