Background
David Collins worked for Flinders Ports Pty Ltd as a casual marine-services employee at the Port of Thevenard. He accepted call-outs as offered and was paid for a minimum number of hours under an enterprise agreement, even when a job finished earlier and he was dismissed from duty before the minimum payment period expired.
After Collins took two weeks of long service leave in 2023, the Construction, Forestry, Maritime and Energy Union alleged that Flinders Ports had underpaid him in breach of the enterprise agreement and s 50 of the Fair Work Act 2009 (Cth). The South Australian Employment Court agreed, treating all hours used to calculate minimum call-out payments as hours worked and excluding two periods of Collins’s unavailability as unpaid leave. It ordered Flinders Ports to pay $544 in compensation and $96.47 in interest.
The Court’s Holding
The Full Court allowed Flinders Ports’ appeal. It held that the “number of hours worked per week” under s 3(2)(b) of the Long Service Leave Act 1987 (SA) means hours during which an employee actually performed duties or was required to remain available and subject to the employer’s direction. It does not include additional nominal hours used only to calculate a minimum call-out payment after the employee has been dismissed from duty.
The Court also held that Collins’s absences from 3 to 16 November 2020 and from 29 May to 6 June 2023 were not shown to be unpaid personal leave. A casual employee’s decision to make himself unavailable is not necessarily leave, and the evidence did not establish that Flinders Ports approved personal leave for either period. The Court set aside the Employment Court’s declarations and orders and dismissed the union’s applications.
Key Takeaways
- For the South Australian long-service-leave calculation, “hours worked” include time spent performing duties or required to be available for work, but not nominal hours used solely to determine a minimum payment.
- An enterprise agreement’s deeming of an employee as “on duty” for a minimum call-out payment period does not determine the statutory meaning of hours worked.
- A casual employee’s notified unavailability is not unpaid leave unless the evidence establishes that the employee sought to take leave and the employer granted it.
Why It Matters
The decision clarifies that South Australian long-service-leave entitlements for hourly, casual and part-time workers are calculated from actual working or required standby time, rather than every hour credited for minimum-payment purposes. Employers must therefore distinguish between time worked and payment guarantees under industrial instruments.
It also underscores the importance of clear systems for requesting, approving and recording unpaid leave for casual employees. Although Flinders Ports’ deficient leave process did not establish approval in this case, casual unavailability and unpaid leave can have different consequences when calculating long-service-leave entitlements.