INTRODUCTION
1 The Transport Workers Union of New South Wales ("TWU") has applied for a declaration pursuant to the provisions of s 154 of the Industrial Relations Act 1996. In essence, the application asserts that three drivers employed on a seasonal basis carting sugar cane for A J Mills & Sons Pty Ltd ("A J Mills") have entitlements under the provisions of the Long Service Leave Act 1955. While accepting that it was the employer, A J Mills opposed the application primarily on the grounds that, on a consideration of the terms of employment and having regard to the seasonal nature of the work, the three drivers in question did not qualify for long service leave.
2 The Amended Application for Declaration ultimately pressed by the TWU was in the following terms:
1. On its proper interpretation clause 4(11)(a1)(i) and/or clause 4(11)(a1)(v) and/or clause 4(11)(a1)(vi) of the Long Service leave Act 1955 establishes that, for the purposes of determining any entitlements to long service leave, the engagement of Mr Stan Bright should be deemed continuous from the time of Mr Bright's initial engagement with the Respondent, June 1989 up until 27 November 2004.
2. On its proper interpretation clause 4(11)(a1)(i) and/or clause 4(11)(a1)(v) and/or clause 4(11)(a1)(vi) of the Long Service Leave Act establishes that, for the purposes of determining any entitlement to long service leave, the engagement of Mr Ken Bryant, should be deemed continuous from the time of Mr Bryant's engagement with the Respondent, June 1985 up until 4 December 2004.
3. On its proper interpretation clause 4(11)(a1)(i) and/or clause 4(11)(a1)(v) and/or clause 4(11)(a1)(vi) of the Long Service Act 1955 establishes that for the purposes of determining any entitlement to long service leave the engagement of Mr Barry Hungerford should be deemed continuous from the time of Mr Hungerford's initial engagement with the Respondent, June 1993 up until 27 November 2004.
THE EVIDENCE
3 Mr Stan Bright, Mr Ken Bryant and Mr Barry Hungerford were members of the TWU and employed by A J Mills during the sugar cane harvest season. In general terms they were employed for approximately six months of the year and, depending on the vagaries of the season, they transported sugar cane from farms to the Broadwater and Harwood sugar mills on the North Coast of New South Wales. A J Mills had engaged a number of employees on a seasonal basis to provide transport services to the Condong sugar mill, the Broadwater sugar mill and the Harwood sugar mill. Before A J Mills lost the sugar crane transporting contract for the 2005 season, the TWU alleged that the employees were engaged by A J Mills on a continuous basis each season and in excess of 10 years The TWU alleged that this continuous seasonal work nevertheless entitled the three employees to pro rata long service leave.
4 While the TWU tendered group certificates and tax returns for the three drivers, no calculation was made of the long service leave said to be owed to each driver, nor was any claim or declaration sought as to the payment of specific sums said to be owed on the application of the provisions of the Long Service Leave Act 1955. The TWU sought to raise an issue of principle by way of declaration and that course was not opposed by A J Mills.
5 Mr Bright's evidence was that he had worked as a seasonal cane driver for A J Mills for 16 consecutive seasons from 1989 until the contract was lost for the 2005 season. His job involved driving a truck to various farms to pick up bins of cane and delivering the cane to the Harwood sugar mill. In order to obtain this work he initially attended an interview with Mr Kelvin Mills and that was the process for all drivers in order to obtain a position with A J Mills.
6 Mr Bright stated that, towards the end of the season, if drivers wanted to return the following season they were to place their name in an exercise book left in the drivers' room. He said each driver would sign their name in the book but from approximately 2000 onwards, A J Mills did not use the exercise book method.
7 The end of the season would be notified when the sugar mills placed a notice indicating the expected last day of crushing but he did not recall A J Mills advising the drivers when the season concluded. On the last payday he would received two payslips, one being the final payslip for that week's work and the other was headed "Termination payment" and recorded what was paid out from four outstanding rostered days off plus annual leave loading. Sick leave, however, accrued from year to year. While sick leave accrued from year to year, public holidays and other entitlements such as bereavement leave were paid. In Mr Bright's view the position was always that he would be guaranteed work for the following year unless A J Mills indicated that his performance was unsatisfactory and that therefore he was not required.
8 Some time after the season was over and before the new season commenced Mr Bright would make a telephone call to A J Mills confirming his availability for that season and that also allowed him to be informed of the start date for the new season and the pre-season meeting that was always held. He usually called a Mr Nick Ciani a manager for A J Mills, who worked for Mr Kelvin Mills. The conversation was usually brief and Mr Ciani would inform him when the pre-season meeting was to be held and when they estimated the new season would begin.
9 Mr Reginald Mills, Mr Kelvin Mills and representatives of the sugar mills all attended the pre-season meetings. The representatives would go through the procedures for the new season and inform the drivers of any operational dangers. Mr Bright could not recall signing any paperwork at the pre-season meeting except for signing an attendance sheet. There were occasions when some of the drivers did not get to the pre-season meetings and he thought he had missed more than one pre-season meetings in his 16 years but that did not prevent him from commencing the new season. Mr Bright spoke of long service leave being raised on a number of occasions in relation to this work but the issue had not been resolved.
10 Mr Bright spoke of the Harwood mill workforce being "very stable" with the trucks being crewed by three drivers who operated the vehicles 24 hours a day, seven days per week, He believed that he had the same crew for the last four seasons of his engagement and the crews remained much the same from year to year. The drivers drove the same truck every year until a new truck replaced it and he believed he drove four different trucks over the 16 years he was employed by A J Mills. He said he had the same payroll number every year although it may have been changed once when a new pay clerk was employed.
11 Mr Barry Hungerford said that he was a seasonal cane driver for A J Mills at the company's Broadwater sugar mill for 12 successive seasons from 1993 up until 2005 when A J Mills lost the contract. During the course of this employment he performed various roles, including picking up bins of cane billet from cane farms and delivering them to the sugar mills.
12 When Mr Hungerford approached A J Mills for employment he spoke to Mr Kelvin Mills and he was handed over to a driver assessor to determine whether he was competent in the cane work. He was tested by the driver assessor and passed and then accepted employment with A J Mills. A J Mills trained him for approximately two days and during his first year he worked on the cane fields for approximately six and a half months.
13 At the start of each cane season Mr Kelvin Mills held a meeting with all the drivers. During the course of this meeting, Mr Mills told the drivers that if they worked well during a season the company would like them to return for the following season but if it did not work out, then the drivers would be called within 14 days of the end of the season to inform them that they were not required for the new season. They were told that if they did not receive that call then they knew the company would like them to return for the new season and Mr Kelvin Mills said this procedure was set out in the agreement. Mr Hungerford understood that if the company did not contact him then he was certain of employment with A J Mills for the next season. Mr Mills also told the drivers that it was their obligation, if they had not been told they were not wanted for the new season, to telephone the company at Easter or at the beginning of April before the new season began to let A J Mills know if they could work for that new season. The company needed to know how may drivers had accepted employment for the new season as they had to make an assessment of how many drivers would be needed for the available work. Mr Hungerford said that this was the procedure he and the other drivers followed from year to year.
14 Following the first season's work, Mr Hungerford contacted A J Mills around Easter and informed them he was available for work and then proceeded to work a new cane season with the company. At the end of that cane season he worked for A J Mills carting sweet corn. From then on he performed both the cane and sweet corn work up until A J Mills lost the contract. Mr Hungerford said therefore he was working for approximately 11 months per year for A J Mills.
15 At the end of the cane season from approximately 1995 onwards, A J Mills presented all employees with a termination notice. A J Mills paid all monies owing for the season for drivers' annual leave and rostered days off but sick leave entitlements were allowed to accumulate. Mr Hungerford understood that, because the sick leave accumulated and that A J Mills allowed the drivers who performed satisfactorily to return each year, he was a permanent employee who had secure, continuous employment with the company.
16 It was Mr Hungerford's understanding that A J Mills would never terminate anybody without reasonable grounds and he said there was a general understanding amongst the drivers, including himself, that if the job was performed properly work would be offered for the next season. It was his view that the vast majority of drivers returned to work the following season and that there were numerous drivers who had worked for the company for more than 10 years. A number of the drivers, including Mr Hungerford, had on several occasions raised the issue of long service leave with the company.
17 Mr Hungerford described the carting of cane as being "highly specialised work". It was his view that the drivers (including himself) were not fully competent to perform the work until after they had worked three or four cane seasons. The work was a "team job" and the drivers were allocated into teams of three. The team members had to be experienced and co-operate as a team and the multi-lift operation used in picking up the cane was described as "a very difficult" operation. Experienced drivers were required and it was in the company's interest to have experienced people come back for the new season. The company invested an amount of time in training employees how to perform the work and that training varied between employees so that training might occur from 2-8 days depending on the individual driver.
18 Mr Ken Bryant commenced his employment with A J Mills at the beginning of the 1981 sugar cane season and he worked every season thereafter until the end of the 2004 season. He performed this work for A J Mills at the Broadwater mill. Before being employed by A J Mills he attended an interview and was offered a position. Mr Bryant was of the view that the job required some specific skills and he was trained for approximately three days in order to learn the operation of the hydraulic lift system used to pick up and set down the bin.
19 From the beginning of his employment it was understood by all the drivers, including Mr Bryant, that unless there was a problem with their performance they would be able to work the following season. At the Broadwater mill, A J Mills was regularly short of drivers and the company therefore relied on the drivers coming back year after year. This resulted in a number of drivers at Broadwater mill being in their sixties while performing this work and a number of them working every season for over ten years. There was a fairly stable crew from year to year at the Broadwater mill with some nevertheless moving on and seeking year round work. During the season the drivers would be informed by notification from the sugar mills of the estimated last crushing day. At approximately that time A J Mills would notify the drivers what positions were available during the "slack season". Mr Hungerford noted there were limited corn work positions to perform that work near Bathurst as well as silage work at Hay and Glenn Innes. He estimated that approximately ten drivers out of approximately 42 regular drivers at the Broadwater mill would continue to work for A J Mills during the slack season. There were only limited positions available for this work and it involved being away from home for much of the time.
20 Drivers who worked during the slack season could choose not to have their annual leave and other entitlements paid at the end of the cane season. The drivers who worked on jobs during the slack season might occasionally be absent when the pre-season meetings were held. In April or May and approximately six to eight weeks before the cane season was due to start, the drivers would receive a call from A J Mills about working in the new season and advising when the pre-season meetings would be held. Mr Bryant had been driving for A J Mills for over 20 years and he understood that he had a secure position year after year and that there was a clear understanding between the drivers and A J Mills that they had secure on-going employment.
21 Evidence was given by Mr Mick Forbes, an official with the TWU since 2002, whose duties included responsibility for the North Coast region of the State with specific responsibility for representing and organising the seasonal cane haulage drivers engaged by A J Mills until 2005. Mr Forbes spoke of a number of enterprise agreements between the TWU and A J Mills covering the seasonal cane haulage drivers. An agreement entitled "Heads of Agreement" expired on 31 January 2001 and Mr Forbes noted that the terms of that agreement had been negotiated prior to him taking on his responsibilities for the union drivers. The terms of that agreement were received into evidence although the document produced by Mr Forbes was unsigned and apparently not formalised by any process within the provisions of the Industrial Relations Act . The Heads of Agreement document spoke of an enterprise agreement whereby a ten per cent increase in wages would apply on the basis of five per cent on signing the agreement, 2.5 per cent from 1 June 1999 and a further 2.5 per cent from 1 June 2000. Other provisions of the agreement were as follows:
(a) a flexibility clause whereby employees could take rostered days off or rostered days off in advance or annual leave in advance or to carry out other duties where productive work was not available because of the state of the weather, a breakdown in machinery or maintenance of machinery;
(b) the driving teams were to comprise of three drivers per team and each team was to be allocated a 24 hour shift per day. Driving teams were to be selected from a management approved list;
(c) the hours of work provided for maximum ordinary hours not to exceed 38 per week, 76 hours per fortnight or 114 hours per three weeks or 152 hours per four weeks if averaged "over a 52 week period, eight hours per day". Certain hours were to be paid at higher rates;
(d) overtime was to be payable to drivers required to work in access of eight hours per shift in circumstances specified;
(e) rostered days off were to be taken in consultation with management in order to maintain the continuous running of the mill. Rostered days off could be taken in advance and on termination of employment, any outstanding or overdrawn days would be adjusted;
(f) the lengths of shifts could be changed by agreement with the driving team and maximum shift hours were set over a period of 144 hours or 14 days;
(g) shift change over times were to be spread with no more than three drivers starting at any one time;
(h) sick leave as per clause 19 of the Transport Industry Interim (State) Award was to apply to all weekly employees with a number of specified exceptions. The sub-clause was to apply to seasonal workers engaged in transport operations associated with the raw sugar manufacturing industry. An employee could accumulate an entitlement to untaken sick leave from one sugar cane crushing season to the next season and to succeeding seasons on the basis of a specified maximum of accumulated hours per week. The accumulation entitlement to untaken sick leave applied where an employee was available for employment to commence work from the beginning of the sugar cane crushing operations at the mill or mills in connection with which he was employed and where he did commence work at that time or such later time as approved by the employer and where he continued employment until the end of the sugar crane crushing operations at those mills until such earlier time or times as approved by the employer. A person not employed for a season was not entitled to accumulate untaken sick leave;
(i) meal breaks could be taken at any time but not "on route". Crib facilities were to be provided on site;
(j) under the heading "Re-employment of seasonal cane drivers" the agreement provided that preference was to be given to the re-employment of seasonal drivers over new applicants provided that, at the end of each season, drivers were to sign a book to indicate their intention to work the following season, and by the end of the third week in April the drivers had to have re-confirmed such an intention. Drivers were required to attend the pre-season information meetings;
(k) wages to be paid weekly by electronic funds transfer;
(l) bereavement leave and compassionate leave available to weekly hire employees in relation to specified relatives up to a maximum of two days' leave on full pay;
(m) leave of absence was granted for jury service with the difference between the jury allowance and the paid rate being made up by the employer;
(n) maternity, paternity and adoption leave would be granted to weekly hire employees in accordance with Ch 2, Pt 4, Div 1 of the Industrial Relations Act 1996;
(o) the parties agreed not to make claims for improvements in wages and conditions except where consistent with the process identified in the agreement:
(p) the rates of pay were to be as set out in accordance with an attached appendix;
(q) a dispute procedure was laid down including an individual grievance procedure;
(r) provision was made for each driver to have responsibility to ensure that weighbridge clerks were notified of the shift change time two hours prior to a shift change;
(s) under the heading "employment/termination of employment", it was provided that employment under the agreement was by the week and could be terminated by either party by the giving of one week's notice or the forfeiture of one week's wages. All new employees were subject to a three-month probationary period and could be transferred back to former position or terminated at the discretion of the management. No employee was to be terminated without counselling except for acts of wilful misconduct, malingering, pilfering, inefficiency, lagging or neglect of duty and provided warnings had been issued on two previous occasions. It was also provided that seniority of employment, ability to do the job and any other reason determined by management or the union would be considered if work declined and there was a need for reductions in the workforce;
(t) casual hire could be engaged by the hour and would be paid for at a minimum of four hours for each engagement;
(u) provisions were made for technological change, complying with the requirements of the company's work manual, the multi-lift operator handbook and provisions were made for the correct placement of bins and the identification of improperly placed bins. There were provisions to notify the weighbridge where estimated time of arrival of drivers could not be achieved;
(v) all drivers were to undergo a medical and health assessment as defined in the company's health and medical policy;
(w) at the beginning of each season drivers could nominate that a percentage of hours over 38 per week could be banked to the rostered days off accrual account. The percentage could be applied to weekly hours or weekend hours or weekday and weekend hours. The accrual would be paid on the request of the employee.
22 Mr Forbes spoke about the degree of specialist knowledge required to perform the work and the way in which the drivers had to "learn their way around the farms and operate the hydraulic system used to load and unload the bins". A J Mills trained the drivers and there was a relatively stable workforce: that situation was mutually beneficial to the company and the drivers. In recent times there had been a shortage of drivers and that had become a chronic problem for the industry but the A J Mills' drivers were able to obtain approximately six months or more employment each year. Mr Forbes could not recall any driver being dismissed and pointed out, as reflected in the enterprise agreement, that the drivers would only be dismissed if there was an issue about their conduct or the performance of the work.
23 The 2001 enterprise agreement expiring on 31 January 2004 repeated the substance of the matters covered by the previously expired agreement at the end of January 2001. The agreement was expressed to partially regulate the terms and conditions of employment provided for in the Transport Industry State Award and the agreement was to prevail to the extent of any inconsistency with the State awards. The objects of the agreement were to enhance the productivity and efficiency of the company's operations, to provide relevant professional training to transport workers, to promote job security for transport workers and to provide them with access to more varied, fulfilling and better paid jobs. Clause 6 of the agreement was headed "Commitment" and stated that, by entering into this agreement, the employer made a commitment to achieve the full-time engagement of its seasonal transport workers, to utilise full-time employees to their full capacity before casual or part-time employees were engaged or work was contracted out to other companies or businesses and that there would be training of the transport workers in occupational health and safety, fatigue management and other professional training as provided by the company. Wages continued to be paid weekly by electronic funds transfer. Clause 14 dealt with "Terms of Engagement" and stated it was seasonal work and therefore subject to the vagaries of the weather, the quality of the cane and the crushing demands of the sugar mills. Engagement would be by the week for the duration of the season and/or the availability of work except for casual hire drivers who would be engaged under the provisions of clause 16. The three-month probationary period was continued in this agreement as was the provisions for hourly hiring of casual drivers on a minimum of four hours engagement. Entitlement to the accumulation of sick leave was continued. Clause 32 provided for off-season employment and stated that an invitation to apply for off-season work would be issued to all drivers before the end of each cane season. That invitation would list all the A J Mills' areas of operation where opportunities existed for off-season work and selection of that work would be made by management, taking into account the performance, the ability to perform work in a team, relevant skills and qualification of seniority. Because of the nature and availability of off-season work, A J Mills was unable to guarantee work in these positions for the entire off-season. Clause 33 was headed "Consideration for year-round work" and provided that, where an opportunity for year-round work arose, cane drivers would be invited to apply and given first consideration by management for the position. Selection criteria was set out, including seniority.
24 According to Mr Forbes, the TWU had consistently raised the payment of long service leave for these drivers and while the company indicated that it would review the matter, the issue was not resolved. Documents sought from the company and provided to Mr Forbes and the union indicated that the company's records from 2000 showed a large number of drivers working each season until A J Mills lost the contract at the end of 2004 season. Those records did not cover the period before 2000 and there were a number of drivers who appeared to have worked some but not all of the seasons between 2000 and the end of the 2004 season.
25 Mr Michael Aird was employed by the TWU as a legal officer. He had previously been engaged by the union as an official from approximately April 1995 and from that time until the end of 1998 he was the North Coast official for the union. His responsibilities included representing members employed by A J Mills based on the North Coast of New South Wales. Mr Aird's evidence essentially dealt with issues arising in reply to the respondent's evidence. He referred to the 1996 agreement operating at A J Mills and a document entitled "Heads of Agreement" that indicated that one trade-off for a 15 per cent wage increase for the drivers was compensation for the drivers being unable to qualify for long service leave because of the seasonal nature of the their employment. Mr Aird said he was the official responsible for representing the drivers and he had the carriage of the enterprise agreement negotiations. He rejected the suggestion that there was any trade-off of drivers' rights to long service leave. The claim pursued for A J Mills' employees was the same as that pursued by the TWU across the transport industry and ultimately led to a variation of the State Award by increasing rates by 15 per cent. That increase to the award was approved by a Full Bench of the Commission. Mr Aird said that nothing more than the industry-wide claim was ever pursued with A J Mills and this was the pattern over a number of such agreements.
26 While Mr Aird was an official representing the sugar cane drivers there was an agreement with A J Mills that the drivers would be engaged from season to season and they would not have to re-apply for their jobs. The systems was that they had to advise the company they were returning for the next season and the only basis upon which a driver would not return was if they were dismissed for poor work performance. Ultimately, preference of engagement for sugar cane drivers was included in the agreement and that was a reflection of what had occurred in the company's operations.
27 The witnesses for the TWU were not cross-examined by counsel for the respondent. There was an agreement between counsel that because the evidence from both sides contained an amount of strictly inadmissible material or were in the nature of submissions, that formal objections would not be taken to that material, bearing in mind that the Court was alive to those issues.
28 Mr Kelvin Mills was a director of the respondent since 1974. He was an engineer by profession and as part of his duties with the respondent he was responsible for managing the company's maintenance workshop. His duties included responsibility for the performance of the company's sugar cane contracts and the "hiring and firing" of the staff to provide cartage work in the sugar cane industry. The company had initially commenced carting to the Condong mill approximately 30 years ago and then obtained the work for the Broadwater mill and later Harwood mill.
29 Mr Kelvin Mills said that, in the beginning, each driver would submit an application seeking employment for the next cane season and he would check the applications and contact previous employers and after carrying out various test, he would then arrange for a driving assessment to be undertaken. A short list would be prepared and he would then select a number of drivers for vacant positions. The employment was seasonal in nature and the majority of drivers were local and were familiar with the seasonal nature of the sugar cane industry. When the sugar mills announced the beginning of the crushing season, the sugar mills would also advise the company who would then advise the drivers when work was to commence. The beginning and end of the season was subject to a high degree of local knowledge.
30 Depending on the circumstances existing in the industry, the conclusion
of the season would vary from year to year. Relevant factors were the weather, the amount of sugar cane to be crushed and whether the growers had decided to pull out of crushing and stand their sugar cane over to the next season. The industry in Northern New South Wales was based around a number of small country towns and the commencement and end of the crushing season was a major topic of conversation. Everyone understood the seasonal nature of the work such that non-sugar season employment was commonly referred to as the "off season" or "slack season" employment. The availability of slack season work was advertised during the cane season and the amount of available work would vary from year to year. Some drivers applied for all available work during the slack season while others would apply for a particular job. Interstate work was also available but some drivers did not chose to pursue this work.
31 While Mr Kelvin Mills was responsible for the employment of drivers for each season, he was not generally involved in negotiations for the enterprise agreements that applied to the work - that was Mr Reginald Mills' responsibility and in later years he was assisted by Ms Tracey Mills and Ms Leonie Mills. During the season, Mr Kelvin Mills had overall charge of the maintenance of the drivers and the cane vehicles' workshop and, in consultation with the operations managers at each mill, had the final say on who was employed. Generally, the process of re-employment of drivers involved the pre-season meetings. Sometimes, with the assistance of others, he would produce an agenda that included the issues raised by the operations manager, Mr Reginald Mills or Ms Tracey Mills. These matters may arise from enterprise agreement negotiations. The drivers would be given dates for the pre-season meeting but not all drivers would attend. Some drivers would be on leave or engaged elsewhere but generally the drivers would indicate whether or not they were interested in further employment. The company accepted that some drivers would not attend the pre-season meeting and their absence would not affect their re-employment for the next season. Generally, telephone apologies were accepted from drivers unable to attend the pre-season meeting.
32 On some occasions Mr Kelvin Mills chaired the pre-season meetings which were formal and were held to advise the drivers of problems that had arisen in the previous season and what had been decided to overcome the problems. Advice would be given as to any rules introduced by the sugar mills and representatives of the sugar mills would attend these pre-season meetings. The transport supervisor and the wages clerks also attended. Normally, there would be a representative from the sugar mills' safety committee and the sugar mills transport supervisor usually addressed the meetings. The pre-season meetings were held for those drivers who were to be employed for the next season. An invitation would be extended to drivers who had indicated before the end of the season that they sought re-employment for the next cane season. The cane drivers were only employed for the cane season and at the end of the season, the drivers were paid out their accrued entitlements and terminated. By the end of the season Mr Kelvin Mills would offer slack season work to the drivers who had responded to the slack season advertisement. At the end of the season, the paymaster was advised of the drivers who had been selected to perform the slack season work and the paymaster was able to keep those drivers' current details in the wages computer system. Some slack season work involved only a short period of employment and did not extend to the whole of the slack season. The drivers engaged on this work would receive their termination payment at the end of the slack season.
33 Drivers terminated at the end of each cane season would receive their termination payment and, if requested, would also receive a separation certificate. In later years it was decided to automatically distribute separation certificates to all terminated drivers whether or not they had requested such certificates. In the early days drivers who sought to be re-employed for the next cane season were required to sign their name in a book to indicate their desire for that work. Mr Kelvin Mills came to the conclusion that there was no point in continuing the book system as all the drivers were signing the book whether or not they had any intention of seeking employment and the book was no longer serving its purpose. A number of drivers, from season to season, who indicated their intention to seek re-employment for the next season did not attend for work or did not seek re-employment. Mr Kelvin Mills decided to replace the book by requiring the drivers to contact the company prior to Easter to indicate whether they were intending to seek re-employment for the next season. A list would be compiled of the drivers who made that contact and they would be notified of the times of the pre-season meetings. This system had some difficulties as a number of drivers would contact the company and advise that they intended to seek re-employment for the next season but would not attend at the beginning of the cane season.
34 Mr Kelvin Mills said that the employment of the cane drivers was for the cane season only and there was no guarantee of on-going employment from year to year. The enterprise agreement introduced preference of re-employment but the drivers were still re-employed each season. Sick leave was accrued because of the provisions of the enterprise agreement but there was still no guarantee of employment for the following season with each driver having to re-apply for re-employment each season. Some drivers would not advise of their intention to seek re-employment for the following season and in those cases, towards the end of the slack season, the company would contact those drivers and enquire whether they intended coming back for the new season. The responses from each driver in those circumstances would vary. Some drivers would be absent for a few seasons and other would work from season to season and then have a break between seasons. Some drivers would finish other jobs before starting with the company after the season had commenced.
35 Mr Bright had raised the question of long service leave at a meeting but Mr Kelvin Mills could not recall the precise terms of the discussions. He did recall Mr Reginald Mills telling the drivers that, as seasonal workers, they were not entitled to long service leave. While long service leave was from time-to-time occasionally raised with Mr Kelvin Mills, no demands were made to him and he did not regard long service leave as being a major issue - it was just one of a number of issues raised. He denied ever using the word "permanent" to refer to full-time seasonal cane drivers nor did Mr Kelvin Mills hear that term being used. Mr Kelvin Mills accepted that, unless drivers misconducted themselves in a major way, they would be re-employed for the following season but the drivers were still required to apply for that employment. Generally, if an experienced driver sought to be re-employed they would be offered re-employment in order for the company to service their contracts with the mills. He rejected the suggestion that this situation was part of an understanding between the drivers and the company that employment was on-going from season to season.
36 In cross-examination, Mr Kelvin Mills accepted that Mr Bright, Mr Bryant and Mr Hungerford performed sweet corn work or corn silage work on occasions when it was available. He agreed that the slack season was a reference to the period between the end of the sugar season one year and the beginning of the sugar season the following year. During this slack season, A J Mills had less work than the work performed during the sugar season. In recent times, approximately 34 trucks were required to service the three sugar mills but that number had been built up over the years. Outside the sugar season there was less work to be performed by mills using these trucks. During the slack season, the trucks would be parked at the company's Murwillumbah depot. They would not be used while sitting in the yard and could be de-registered for that period. Other trucks could be used for corn silage and sweet corn work, although at times that work could be generally less intensive than the sugar work but nevertheless there were periods when the sweet corn work and corn silage work, for a period of time and depending on the season, could require work over twenty-four hours, seven days per week. During the slack season the mills did not have the demand for driver labour that it had during the sugar season. A reason for the cane drivers not being employed during the slack season was because there was no work to be performed and in some cases, drivers did not wish to perform that work because it involved going out of the area.
37 When Mr Kelvin Mills spoke about the drivers submitting an application for the next cane season, there was a written application only for the first employment and that did not have to be filled out for every subsequent season but a verbal application would be made. For a period, drivers who wished to be re-employed for the next season were required to sign the book. Mr Kelvin Mills agreed that a driver who indicated his intention to seek the work in approximately April the following year would be given the work as a matter of course unless he had been told earlier that his performance was unsatisfactory An existing driver, found not to be incompetent or unsatisfactory, would come back the next year. Where there was the rare occasion of an overlap between seasons, then those who were working in the off-season continued to accrue entitlements such as annual leave. However, most of the time, at the end of the cane season, there would be a gap between seasons and over the Christmas period the drivers would be terminated and paid out their leave entitlements. There was a time when an arrangement was entered into, on a case by case basis, where the drivers would request A J Mills to hold their holiday pay so that they could claim it when they were away, during the slack season or if there was no work.
38 Mr Reginald Mills had been a director of the company since 1974. He described the company as a road transport service with a fleet of approximately 160 "units" and operating along the Eastern seaboard of Australia. In approximately 1973, A J Mills successfully tendered for a contract with CSR Ltd for the cartage of harvested sugar cane from selected farms to the raw sugar mill at Condong in northern New South Wales. That contract continued, including with new mill owners, and ran for the sugar cane crushing season from approximately July to December each year. The company was unsuccessful in its 2005 season tender to retain the sugar cane cartage contract and in approximately December 2004, ceased to provide services under the sugar cane cartage contract. On the cessation of the sugar cane cartage contract, the drivers employed to service that contract were terminated apart from one driver who was contracted to carry bulk sugar until June 2005.
39 Mr Reginald Mills was involved in the negotiation of enterprise bargaining agreements for the sugar cane drivers. The negotiations were conducted by an enterprise bargaining agreement committee and minutes would be taken of the meetings of that committee. Minutes were circulated to members of the committee and once an agreement was negotiated, a Heads of Agreement would be prepared and then submitted to the Industrial Commission for approval. Mr Reginald Mills said he was involved in the negotiations for each of the agreements with the TWU covering the sugar cane drivers delivering to the Harwood, Condong and Broadwater mills. In particular, he was involved in the 1996 negotiations for a new enterprise agreement. In July 1996 he wrote to the cane transport management team of the New South Wales Sugar Milling Co-Operative Ltd and advised that the company had finalised their enterprise agreement negotiations with the cane drivers and the TWU. Rates were increased by 6 per cent on the award from 16 October 1995, 12 per cent from the award from 4 August 1996 and 15 per cent on the award from 16 November 1996. His letters refer to "trade-offs" being set out in an attached document entitled "Heads of agreement - Transport Workers Union of Australia, New South Wales branch and A J Mills & Sons Pty Ltd Seasonal Cane Transport Drivers and Begasse Drivers at Harwood, Condong and Broadwater". That agreement noted that the employer agreed to pay 15 per cent above the current minimum award rates by way of an enterprise agreement in three movements, 6 per cent from 16 October 1995, 5 per cent from 3 August 1996 and 3 per cent from November 1996. A number of productivity trade-offs were listed including the following:
* because seasonal employment contract the inability for drivers to claim redundancy pay;
* because of seasonal employment lack of qualifications for long service leave.
40 In September 1984, the TWU notified the Industrial Commission of a threatened dispute involving seasonal workers in the sugar cane industry employed under the Transport Industry (State) Award. The dispute related to seasonal workers employed by A J Mills at the Condong and Broadwater mills and another transport operator. The TWU's letter notifying the dispute stated that there were 93 TWU members involved, 60 of whom were employed by A J Mills. The dispute arose over three issues, the third issue involving long service leave and seeking that clause 24 of the award be amended to provide as follows:
Part-time seasonal employees working in or in connection with the sugar cane industry shall be entitled to the NSW Long Service Leave Act provisions as though their employment was continuous and unbroken, provided they are so engaged each sugar season.