appeal from decision of South Australian Employment Court
where first respondent claimed appellant breached s 50 of Fair Work Act 2009 (Cth) by underpaying second respondent in respect of long service leave entitlements
construction and application of provisions for determining “ordinary weekly rate of pay” in s 3(2) of Long Service Leave Act 1987 (SA)
Quick Take
1The expression 'number of hours worked per week' in s 3(2)(b) of the Long Service Leave Act 1987 (SA) refers to hours for which an employee was actually required to be performing, or available to perform, duties — it does not extend to the nominal number of hours by reference to which minimum call-out payments are calculated under an enterprise agreement.
2A casual employee's absence from work is not automatically characterised as 'unpaid leave' under s 3(4) of the Long Service Leave Act 1987 (SA); the distinction between a casual employee exercising their liberty to be unavailable and taking unpaid leave is real and consequential, and requires evidence that leave was actually applied for and granted by the employer.
3An employer's failure to establish a system for casual employees to apply for unpaid leave does not give rise to a deemed or tacit approval of leave where the employer's unchallenged evidence was that it did not believe casual employees had such an entitlement.
