Appeal upheld, seasonal drivers not owed long service

<font color=red><b>AMENDED:</b></font> Mills Transport wins appeal against decision forcing it to pay long service leave to seasonal drivers

August 19, 2009

AMENDED: Cane carrier Mills Transport has won an appeal against a decision forcing it to pay long service leave to season truck drivers.

the New South Wales Industrial Court ruled the Lismore-based operator owed long service leave to three drivers employed for more than 10 years on a non-consecutive basis.

In a case brought by the Transport Workers Union, the court found the drivers were not intermittently employed, despite signing annual contracts and receiving termination payments after the cane season had finished.

Mills argued the drivers’ employment could not be classified as ‘continuous service’ to be eligible for payment under the Long Service Leave Act 1955.

The Full Bench of the Industrial Relations Commission accepted the argument in a ruling last week and in a two-one decision upheld the appeal.

But Commissioners were sympathetic to cases where casual workers do work continuously for an employer for a long period of time.

They uphold the appeal "regrettably", the judgement reads.

"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," the judgement reads.

But the three Mills drivers in question were all found to have sufficient interruption in their employment to not be classed as providing continuous service.

"There is no basis upon which to construe the phrase 'continuous service' other than to give it its ordinary meaning," the judgement says.

The decision sets aside the original ruling and means the company is not required to pay long service leave to the drivers.

NOTE: An original report which appeared briefly on the website today incorrectly stated that Mills Transport had lost its appeal against the NSW Industrial Court decision. This was in no way correct and an error on the journalist’s behalf. We regret this incorrect version of events being published and are happy to publish this corrected version stating that the appeal against the decision WAS upheld, setting aside the original judgement requiring Mills Transport to pay long service leave to the drivers involved. We apologise for any hurt or damage done to Mills Transport and/or its managers and staff.

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