Federal Court of Australia

Flinders Ports Pty Ltd v Construction, Forestry, Maritime and Energy Union [2026] FCAFC 131

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The declarations made by the South Australian Employment Court on 18 September 2025 and the orders made by the South Australian Employment Court on 26 September 2025 be set aside.

3.    In lieu thereof, there be substituted an order that the applications made to the South Australian Employment Court by the Construction, Forestry, Maritime and Energy Union, dated 20 November 2023, be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    This appeal from a decision of a deputy president of the South Australian Employment Tribunal, sitting as the South Australian Employment Court (SAEC), raises two distinct issues concerning the interpretation and application of the Long Service Leave Act 1987 (SA) (LSL Act). The issues arise in the context of the employment of the second respondent, David Collins, by the appellant, Flinders Ports Pty Ltd (Flinders Ports), which was governed by the Flinders Ports and Flinders Ports Management Services Enterprise Agreement 2022-2026 (Agreement).

2    Mr Collins worked on a casual basis, attending work only when he was called out for duty. The Agreement required that, where a casual employee was called out for duty, they were to be paid the equivalent of a minimum number of hours, even if they were not required to work that many hours. The first question raised by the appeal is whether the deputy president was correct to hold that Mr Collins’s entitlement to long service leave, in accordance with the LSL Act, was to be calculated by reference to the number of hours for which he was required to be paid (and was paid) in accordance with the requirements of the Agreement, rather than the number of hours that he had actually been required to work. The second question raised by the appeal is whether the deputy president was correct to hold that two distinct periods in respect of which Mr Collins advised Flinders Ports in advance that he was unavailable to be rostered to work, were to be disregarded for the purposes of calculating his long service leave entitlements.

3    The first respondent, the Construction, Forestry, Maritime and Energy Union (CFMEU), commenced the proceedings in the SAEC on behalf of its member, Mr Collins. The deputy president ordered that Flinders Ports pay Mr Collins $544 by way of compensation for Flinders Ports’ contravention of s 50 of the Fair Work Act 2009 (Cth) (FW Act) as a result of what her Honour found to be an underpayment in respect of a period of long service leave taken by Mr Collins.

4    For the reasons that follow, the appeal should be allowed, the orders of the deputy president should be set aside and the CFMEU’s applications to the SAEC should instead be dismissed.

Factual background

5    On 3 March 2010, Mr Collins commenced employment, on a casual call out basis, as a Marine Services Team Employee for Flinders Ports. He is on a rotation roster of casual staff, working at the Port of Thevenard near Ceduna in South Australia (Port). Mr Collins does not have set hours of work per week, and the number of hours of work he performs each week varies depending on the shipping movements at the Port.

6    Each year, approximately 120 vessels berth at the Port. For each vessel, there is an arrival “job”, requiring seven employees to perform duties, typically for 30 to 90 minutes, and a departure “job”, requiring four employees to perform duties, typically for 10 to 30 minutes. There are, therefore, approximately 240 “jobs” per year to be performed by the casual staff on the rotation roster and the team leaders.

7    When rostered to work, Mr Collins can be offered a call out to a “job” at any time of the day or night, by phone call or text. Call outs are often offered the day before the relevant “job”. Mr Collins is free to accept or reject a call out when it is offered.

8    For each call out, there is a minimum period of time for which Mr Collins is required to be paid, as prescribed by the Agreement. In his affidavit evidence, Mr Collins refers to this as the “minimum call out period”. The minimum call out period varies depending on the day of the week and the time when Mr Collins is required to attend for the call out. He is occasionally required to work for longer than the minimum call out period. If he is only required to carry out duties for a period that is shorter than the minimum call out period, Mr Collins is permitted to leave the worksite.

9    On occasions where the “job” is finished before the end of his call out period, Mr Collins is paid for a minimum number of hours, regardless of the time required for him to perform his duties.

10    Andrew Wilkins is employed by Flinders Ports as a Marine Services Manager. He is responsible for the delivery of marine services at the Port, including arranging staffing for each of the “jobs” at the Port from his crew list of about 19 casual employees. Mr Wilkins gave evidence before the SAEC in relation to the processes involved in the exercise of his duties as Marine Services Manager.

11    Mr Wilkins deposed to telephoning employees, after receiving notice of a “job” to be filled, to see if they are available to work. He said that the staff are free to accept or reject the offer of a call out. He notes in a logbook the periods during which an employee has indicated that they will not be available to work, and he does not telephone them to offer call outs during those periods. Employees sign on in a logbook in the amenities room at the Port, before performing duties which include mooring, maintenance, welding, and other general duties. Additionally, Mr Collins sometimes performs the duties of a team leader.

12    Mr Wilkins said that the time a “job” finishes is recorded by Flinders Ports on timesheets, and that he records the call out payment period separately in an electronic system known as “PortMIS”. He gave evidence that, in circumstances where the “job” finishes before the end of the call out period, he would enter the minimum call out period. However, if an employee works longer than the call out period, Mr Wilkins records in the PortMIS system the time worked that is additional to the call out period as “continuous time” (referred to in the deputy president’s judgment as “continuous hours”). The records kept by Flinders Ports enable it to identify the time actually worked by casual employees, as well as, and distinctly from, the number of hours by reference to which they were paid.

13    Although both Mr Collins and Mr Wilkins agree that, at least on some occasions, employees were free to leave the Port once the relevant “job” or “jobs” were completed, their evidence on this topic was not entirely consistent. Mr Collins stated in his affidavit:

I do not recall ever being dismissed from duty. Occasionally, my supervisor says to me words to the effect “Ok we’ll see you later” or “Good to go” once the job or jobs I have been booked for have been completed.

14    Mr Wilkins’s affidavit evidence on this topic was as follows:

… Employees know from long standing experience when a job is finished and once the job is finished, will all leave the wharf together. When I am working on a vessel, I will usually have my car at the end of the wharf. At the end of the job I will drive employees back to the amenities. For an arrival, not everyone will fit in the car, so some employees will drive back, and those that do not fit in the car will walk back to their cars.

…

Flinders Ports keeps a record of the time worked by [marine services casuals] at Thevenard. … The “job start” time listed for each day is the time an employee starts working on a job, and the job end time is the time the particular job ends and employees stop working.

15    The finding of the deputy president in relation to this issue is expressed in the following terms at [11] of her Honour’s reasons:

Mr Collins is on a roster of marine services casuals who work at the Port of Thevenard in South Australia. He and the other marine services casual workers are typically called in to attend to ships docking or departing the Port. On occasion, this might mean he is required only during the first hour of a 3 or 4 hour call out time, after which he is dismissed and able to leave the worksite. On other occasions, he might be required to work longer than his call out time, to complete the work required. As such, he might work further time of, for example, 5 hours for what started as a 4 hour call out.

(Emphasis added.)

16    Since 1 July 2023, Flinders Ports has paid Mr Collins $36.48, the base hourly rate of pay for a “Marine Services Casual Level 1” under the Agreement, as well as an additional 25% casual loading, for each hour of a minimum call out period.

17    Mr Wilkins’s evidence was that Flinders Ports does not require or generally use leave forms for periods during which the employees are unavailable, except where they are on paid leave, including union delegate training leave and long service leave. His belief was that leave forms are not used because casual employees do not have an entitlement to be paid annual or personal leave, and are free to simply be unavailable for a period of time for reasons of their own.

18    Mr Collins was absent from work, and was not paid for any hours worked, for three periods prior to his application for long service leave: from 3 to 16 November 2020; from 9 to 16 December 2022; and from 29 May to 6 June 2023.

(1)    On 27 October 2020, Mr Collins completed and submitted an application form seeking personal leave without pay in respect of the period from 3 to 16 November 2020. The application that he had completed was annexed to his affidavit and was in evidence before the SAEC. It did not contain any statement identifying the reason for seeking personal leave, despite the fact that the form included a field described as “Additional Information and Evidence: (Required)”. The form that was in evidence was neither signed by anyone on behalf of Flinders Ports nor otherwise marked as having been approved.

(2)    In early December 2022, Mr Collins advised Flinders Ports that he would be absent from 9 to 16 December 2022 to travel to Brisbane for a funeral.

(3)    In May 2023, Mr Collins conveyed to his team leader, Mr Wilkins, by telephone, that he was ill with COVID-19 and would be absent from work from 29 May to 6 June 2023, although the evidence was inconsistent as to whether it was Mr Collins or Mr Wilkins who made the telephone call.

19    On 20 July 2023, Mr Collins submitted to Flinders Ports an application for 14 days of long service leave, for the period from 20 July to 3 August 2023, and then took long service leave for that two-week period. On about 3 August 2023, Flinders Ports paid Mr Collins $269.50 in respect of long service leave entitlements for that period. On about 26 October 2023, after accepting that it had made an error in the rate of pay used to calculate his entitlements, Flinders Ports paid Mr Collins a further $15.77, bringing the total sum paid to him in respect of long service leave entitlements for the period from 20 July to 3 August 2023 to $285.27.

20    On 20 November 2023, the CFMEU commenced the proceeding in the SAEC on behalf of Mr Collins, seeking payment of the difference between what Mr Collins was paid while on long service leave and the full amount to which it claimed he was entitled to be paid, plus pecuniary penalties. A hearing was conducted by the SAEC on 30 August 2024, limited to the question of the claim for payment.

21    On 25 August 2025, the deputy president delivered judgment: Construction, Forestry, Maritime and Energy Union v Flinders Ports Pty Ltd [2025] SAET 86. Her Honour determined, relevantly, that Mr Collins’s entitlement to long service leave was to be calculated on the basis that the “hours worked”, for the purpose of determining his “ordinary weekly rate of pay”, included hours for which he was paid when he was called out to attend for duty, even where he had been allowed to leave work before the end of his call out period. The deputy president further held that, for the purposes of calculating Mr Collins’s long service leave entitlements, the periods when Mr Collins was absent from work from 3 to 16 November 2020 and 29 May to 6 June 2023, were to be disregarded on the basis that they were periods of unpaid leave. Her Honour also held that Mr Collins had not established that the period from 9 to 16 December 2022 was a period for which he had taken unpaid leave.

22    On 26 September 2025, orders were made by the SAEC, including an order requiring Flinders Ports to pay Mr Collins $544.00 in compensation for underpayment of long service leave entitlements, and $96.47 in interest on that compensation.

23    By its amended notice of appeal dated 23 July 2026, Flinders Ports appeals to this Court on two grounds, identified as grounds 1 and 3.

Relevant provisions of the LSL Act and the Agreement

The LSL Act

24    The LSL Act creates entitlements to long service leave for employees whose employment or service is connected to South Australia in particular ways, and provides for the calculation and taking of such leave. Section 8(1) of the LSL Act provides that, subject to the LSL Act, a worker who is on long service leave is entitled to be paid at their “ordinary weekly rate of pay”. That expression is defined by s 3(2) of the LSL Act, which provides as follows:

(2)    A reference in this Act to a worker’s ordinary weekly rate of pay is a reference to the worker’s weekly rate of pay as at the relevant date exclusive of overtime, shift premiums and penalty rates but this definition is subject to the following qualifications—

(a)    if the worker is employed on commission or on any other system of payment by result, the worker’s ordinary weekly rate of pay will be ascertained by averaging the worker’s weekly earnings over the 12 months immediately preceding the relevant date; and

(b)    if during the whole or part of the period of three years immediately preceding the relevant date—

(i)    the worker was employed on an hourly basis at an hourly rate of pay; or

(ii)    the worker[’]s ordinary hours of work per week were varied and consequently the worker’s weekly rate of pay was varied; or

(iii)    the worker worked on a casual or part-time basis,

the worker’s ordinary weekly rate of pay will be ascertained by averaging the number of hours worked per week in that period of three years and multiplying that result by the worker’s rate of pay per hour as at the relevant date, exclusive of overtime, shift premiums and penalty rates (and for the purposes of this paragraph a person who is employed on a casual basis is not to be regarded as being paid at a penalty rate); and

(c)    if the worker’s employer provides accommodation during his or her employment but not while the worker is on leave, the worker’s ordinary weekly rate of pay will be increased by an amount representing the weekly value of that accommodation (that value being determined, where possible, by reference to an award or agreement and, where there is no applicable award or agreement, by reference to the fair and reasonable monetary value of that accommodation).

25    Since Mr Collins was, at all relevant times, employed by Flinders Ports on a casual basis, his employment fell within the category identified in s 3(2)(b)(iii) of the LSL Act. Consequently, it is the approach to ascertaining his “ordinary weekly rate of pay” that is described in s 3(2)(b) which is applicable in this case.

26    Section 3(4) of the LSL Act provides:

(4)    For the purpose of averaging weekly earnings under subsection (2)(a) or the number of hours worked per week under subsection (2)(b)—

(a)    any week when the relevant worker—

(i)    was on unpaid leave for the whole of the week; or

(ii)    was absent from work on account of a work injury (within the meaning of the Return to Work Act 2014) for which the worker received weekly payments under that Act or, before 1 July 2015, under the Workers Rehabilitation and Compensation Act 1986,

will be disregarded; and

(b)    the relevant periods under subsection (2)(a) and (2)(b) will be taken to be periods (which need not be consecutive) totalling 12 months (in the case of subsection (2)(a)) or 3 years (in the case of subsection (2)(b)) after disregarding any weeks when the worker was not at work due to unpaid leave or an absence from work on account of a work injury (within the meaning of the Return to Work Act 2014) for which the worker received weekly payments under that Act or, before 1 July 2015, under the Workers Rehabilitation and Compensation Act 1986; and

(c)    any period when the relevant worker was on paid leave will be taken into account.

The Agreement

27    The Agreement is an enterprise agreement approved by the Fair Work Commission pursuant to Subdiv B of Div 4 of Pt 2-4 of the FW Act. It came into operation on 25 January 2023.

28    The main body of the Agreement consists of eight numbered parts. They apply to the employment of employees of Flinders Ports generally, in accordance with their terms. In addition, there are four schedules and four appendices to the Agreement. Schedule 3 to the Agreement, entitled “Regional Ports”, contains provisions that apply specifically to the employment of employees of Flinders Ports who work at regional ports. The parties agree that Mr Collins is an employee to whom Sch 3 applies.

29    Part 7 of the Agreement is entitled to “Leave”. Clause 7.9 of the Agreement addresses long service leave. Relevantly, cll 7.9.1 and 7.9.2 provide:

7.9 Long service Leave

7.9.1    An employee who has ten years or more effective service is entitled to the following long service leave:

7.9.2    Permanent Staff are to be paid their ordinary rate of pay for long service leave as per the Long Service Leave Act. For employees who receive a shipping or overtime allowance, for any leave accrued since June 1996 long service leave pay includes regular shipping and overtime allowances paid to those employees.

Casual staff are paid as per the Long Service Leave Act in accordance with the prescribed method.

(Inapplicable table columns omitted.)

30    The words “in accordance with the prescribed method” in cl 7.9.2 are evidently to be understood as a reference to the method of calculating and paying long service leave entitlements under the LSL Act – including, relevantly, the method for determining an employee’s “ordinary weekly rate of pay” under s 3(2) and (4).

31    Clause 7.4 of the Agreement deals with employee entitlements to compassionate leave. Clause 7.4.4 provides that a casual employee is entitled to up to two days’ compassionate leave for each “permissible occasion”. This reflects the minimum entitlement to compassionate leave which is available to all employees in accordance with Subdiv C of Div 7 of Pt 2-2 (ie, ss 104-106) of the FW Act.

32    Clause 7.5 also provides for another form of unpaid leave which is available to casual employees. Clause 7.5.2.1 entitles all employees, including casual employees, to 10 days per year of paid family and domestic violence leave. Clause 7.5.2.2 provides that, upon exhaustion of that paid leave entitlement, employees are entitled to a further two days of unpaid family and domestic violence leave “on each occasion”.

33    As noted above, Mr Collins is employed by Flinders Ports as a “Marine Services Casual”. Clause 1.4 of Sch 3 to the Agreement provides as follows:

1.4    Casual employment

A casual employee is classified as a Marine Services Casual (MSC) and is engaged and paid as such.

A casual employee will be paid per hours worked 1/38 of the weekly rate prescribed in this Agreement for the work performed and plus a twenty five percent casual loading will be applied to the actual hours worked to compensate for the lack of personal and annual leave entitlements.

34    Given that the 25% casual loading is said to compensate for lack of personal and annual leave entitlements, the terms of cl 1.4 of Sch 3 to the Agreement appear to suggest that a casual employee in Mr Collins’s position is not entitled to “personal leave”.

35    Clause 3.1.3 of Sch 3 to the Agreement relevantly provides:

3.1.3 Marine Services Casual (MSC Classification)

Marine Services Casual employees are engaged to supplement operations and will be engaged under the MSC Classification.

The rates are base rates only, an additional 25% casual loading is applied to hours worked for casual employees.

Payments for casual employees will be based on the call out provision in clause 3.6.

…

36    The “call out provision” to which cl 3.1.3 refers, found in cl 3.6 of Sch 3 to the Agreement, relevantly provides as follows:

3.6 Call Out Arrangements and Payments (SRTR and MSC Classifications)

The call out and cancellation arrangements in this clause do not apply to those employees in receipt of a shipping/overtime allowance:

3.6.1    Call Outs During Ordinary Hours (0730-1600 Week Days)

Employees booked to attend shipping or other duties (mooring, deckhand or launch master or any other work for which they are qualified) on a call out basis, will be paid a minimum call out attendance fee of 3 hours at the appropriate job rate above). Other work may be paid at a higher rate depending on the type of work and classification level of the work being performed. Employees are considered to be on duty during the entire minimum call out payment period until dismissed. Multiple vessel services may be carried out within each call out. See 3.6.8 for interpretation of when a new call out applies.

3.6.2    Call Outs After 1600 Hours – Week Days – Minimum Payment

If any employee is required to present for duty after 1600 hours and before midnight (Saturdays, Sundays and public holiday excepted) they will be paid overtime at the rate of double time, with a minimum payment as for four hours at the appropriate job rate above for each call out during the said hours on which the employee is so required to present. Multiple vessel services may be carried out within each call out. See 3.6.8 for interpretation of when a new call out applies.

Employees are considered to be on duty during the entire minimum call out payment period until dismissed.

3.6.3    Call Outs Before 0730 Hours – Week Days – Minimum Payment

If any employee is required to present for duty after midnight and on or before 0330 hours (Saturdays, Sundays and public holidays excepted) the employee will be paid overtime at the rate of double time with a minimum payment for four hours at the rate of double time for each call out.

Call Out after 0330 and on or before 0600 will be paid overtime at the rate of double time up to 0730 and paid ordinary time after 0730 until work has been completed.

Call Out after 0600 will be paid overtime at the rate of double time up to 0730 and paid ordinary time until work has been completed, a minimum of three hours total will apply.

3.6.4    Call Outs On Saturdays – Minimum Payment

If any employee is required to present for duty on any Saturday they will be paid overtime at the rate of double time with a minimum payment at the appropriate job above of four hours for each call out during the said hours in which the employee is so required to present. Multiple vessel services may be carried out within each call out. See 3.6.8 for interpretation of when a new call out applies.

Employees are considered to be on duty during the entire minimum call out payment period until dismissed.

3.6.5    Call Outs On A Sunday/Public Holiday – Minimum Payment

An employee who is required to present for duty on any Sunday will be paid overtime at the rate of double time and one half with minimum payments at the appropriate job above for each call out on which the employee is so required to present for four hours at the rate of double time and one half. Multiple vessel services may be carried out within each call out. See 3.6.8 for interpretation of when a new call out applies.

Employees are considered to be on duty during the entire minimum call out payment period until dismissed.

3.6.6    Team Meetings and Training During Shipping Call Outs

Employees may be required from time to time to attend team meetings or participate in face to face or online training during a shipping call out. If an employee is required to complete online training during a shipping call out, managers will attempt to give a minimum of 10 days’ notice for this training to be completed.

…

37    In summary, different “minimum call out payment periods” may apply to different “call outs”, depending on the day of the week and the hour of the day when they commence. These subclauses indicate that, if called out, an employee is “considered to be on duty” until the minimum call out payment period – that is, the minimum number of hours’ work for which they are required to be paid – is completed, “until dismissed”.

38    Clause 3.6.7 of Sch 3 to the Agreement provides for payments that must be made to an employee if they are rostered to present for duty and are notified of a variation to, or cancellation of, the rostered time for commencement. Where an employee is not given at least two hours’ notice of the cancellation of, or certain kinds of variation to, a shift (or four hours’ notice if the shift is outside ordinary hours), the employee is to “be paid for three hours work at ordinary job rates”. Of some, though perhaps minor, potential relevance to the first issue before the Court on the appeal is the following part of cl 3.6.7:

On the Job Cancellations

If any employee is rostered to present for duty at any time and is not notified of a variation to the rostered time of commencement prior to reporting for duty the employee will be paid the full minimum call out.

The employee will remain on duty unless authorised to leave their post. If such an employee is authorised to leave and a new labour requirement time is then established an additional minimum call out payment will be paid.

If the employee is instructed to remain on duty and after two hours from the original rostered call out time, in the case of mooring employees, the first line has not been taken from any ship or cast off any ship, or in the case of pilot launch employees, the launch has not proceeded underway to service any ship then a second minimum call out payment will become payable and the employee will remain on duty until released.

In these circumstances continued duty beyond six hours from the original call out time will attract payments at appropriate rates.

(Emphasis added.)

39    The terms of this part of cl 3.6.7 (in particular, the italicised portions) contemplate that, in some circumstances, an employee may be entitled to be paid a second “minimum call out payment” in respect of hours that they are required to work which fall within the hours already nominally covered by the first minimum call out payment.

40    Clause 3.6.8 of Sch 3 to the Agreement makes provision for circumstances where employees who are required to continue work beyond the minimum call out period are entitled to be treated as having commenced a new call out (in which case, they must again be paid the minimum call out rate). In essence, where an employee is required to commence servicing a different vessel after the expiration of the minimum call out payment period that applied to their first call out, they are entitled to be paid on the basis that a new and distinct call out has occurred; that is, to again be paid a minimum call out payment. Time which an employee spends finishing the servicing of a vessel which began during the original minimum call out payment period is required to be paid at the appropriate hourly rate, but is not treated as a new call out attracting a new minimum call out payment.

41    It may be noted that the provisions in cl 3.6 of Sch 3 which deal with casual employees distinguish between periods of time which a casual employee is actually required to work and the minimum number of hours by reference to which the amount they are entitled to be paid is calculated.

42    Clause 6.3 of Sch 3 to the Agreement makes provision for “personal/carer’s leave” for employees at regional ports. Clause 6.3.1 makes detailed provision for entitlements to personal/carer’s leave which apply to “[a]n employee, other than a casual employee”. Then, in relation to casual employees, cl 6.3.1 simply states: “Casual employees are entitled to unpaid personal/carers leave as per the National Employment Standards.” The National Employment Standards make no provision for unpaid “personal leave”, but Subdiv B of Div 7 of Pt 2-2 (ie, ss 102-103) of the FW Act provides that employees (including casual employees) are entitled to two days of unpaid carer’s leave for each “permissible occasion”. Clause 6.3.1 is the only provision in Sch 3 to the Agreement which refers to any form of personal or carer’s leave (apart from family and compassionate leave) for casual employees.

43    Finally, Pt 2 of Sch 3 to the Agreement addresses the equitable rostering of employees to perform shipping duties. It provides:

2. Allocation Principles

The parties agree that there should be an equitable opportunity to perform shipping duties.

To achieve this outcome a rotation allocation system shall operate.

Points shall be allocated to each employee on the basis of hours paid (1 point per hour paid). For example the minimum points allocated shall be 3 for each Monday to Friday day call-out, 10 for each Sunday call-out, and 8 for the Saturday and Monday to Friday nights.

Points will be allocated on the basis of work offered as per the rotation. For clarity points will also be allocated for any periods of unpaid leave.

Notwithstanding the above each employee shall be entitled to 10 days per year unpaid personal leave. In these circumstances (where Personal Leave would be allowed to a permanent employee as per the [National Employment Standards]) no points will be allocated for work being declined. The 10 days may be extended by majority agreement with the work group in the relevant port.

To ensure transparency a record of points shall be made available to the work group each calendar month. This record will also include the points accumulated year to date. Points will be reset to zero at the start of each new financial year.

44    The language of this provision is somewhat difficult to understand, but it appears to contemplate that each employee should be allocated “points” according to the work which is either actually performed by that employee or which is “offered” to the employee. The statement that “points will also be allocated for any periods of unpaid leave” would seem to mean that, even if an employee took unpaid leave, they might be nominally treated as having been “offered” work in that period, with points allocated accordingly. The expression “Notwithstanding the above” indicates that the entitlement of employees to take unpaid leave, without points being allocated, operates notwithstanding stipulations about the allocation of points in the preceding two paragraphs. On the face of Pt 2 of Sch 3, the references to “each employee” are apt to include casual employees, so the effect is that, even though there is no clear reference to this entitlement to unpaid personal leave in Pt 7 of the Agreement or cl 6.3 of Sch 3 to the Agreement, casual employees are to accrue unpaid personal leave at the rate of 10 days per year. The Deputy President accepted (at [127]) that, on the proper construction of the Agreement, casual employees had an entitlement to unpaid personal leave. On the appeal, Flinders Ports accepts this construction as correct.

45    The Agreement replaced an earlier enterprise agreement, the Flinders Ports and Flinders Port Management Services Enterprise Agreement 2015-2018 (2015 Agreement). The relevant clauses of the Agreement appear to be relevantly to the same effect as the equivalent clauses in the 2015 Agreement. In particular, although the numbering of the parts of the Sch 3 to the two agreements differs, the provisions of Pts 2 and 3 of Sch 3 to the Agreement to which reference has been made above correspond with provisions contained in Sch 3 to the 2015 Agreement. The parties did not suggest that there were any relevant differences. Accordingly, we shall refer only to the provisions of the Agreement, even though some of the events which are relevant to determining the amount which Mr Collins was entitled to be paid during the relevant period of long service leave occurred when the 2015 Agreement was in force.

Jurisdiction

46    As has been seen, the relevant obligation of an employer to pay long service leave is founded on provisions of South Australian legislation, the LSL Act. It is appropriate to identify the source of the jurisdiction which was exercised by the SAEC in this case, and to explain briefly the basis on which this Court has jurisdiction to hear and determine the present appeal.

47    The claim filed by the CFMEU and Mr Collins in the SAEC sought an order that Flinders Ports pay Mr Collins the sum of $533.71, being the amount which they contended Mr Collins had been underpaid in respect of his long service leave, plus interest. They also sought the imposition of a pecuniary penalty on Flinders Ports for what they claimed was a contravention of s 50 of the FW Act. Section 50 is a civil remedy provision which provides that “[a] person must not contravene a term of an enterprise agreement”.

48    The claim was premised on the proposition that a failure to pay long service leave was not only a contravention of the LSL Act but also amounted to a contravention of cl 7.9.2 of the Agreement. The deputy president observed (at [56]) that the Agreement “does refer to long service leave and thereby includes it as an entitlement under the Agreement as well as the LSL Act”. Flinders Ports accepted that that was correct, both in the SAEC and on the appeal.

49    The SAEC is an “eligible State court” for the purposes of the FW Act: FW Act, s 12 (definition of “eligible State court”); Fair Work Regulations 2009 (Cth), reg 1.05. Section 545(3) of the FW Act provides:

545 Orders that can be made by particular courts

…

(3)    An eligible State or Territory court may order an employer to pay an amount to, or on behalf of, an employee of the employer if the court is satisfied that:

(a)    the employer was required to pay the amount under [the FW Act] or a fair work instrument; and

(b)    the employer has contravened a civil penalty provision by failing to pay the amount.

50    Section 546(1) of the FW Act relevantly provides that an eligible State court may, on application, order a person to pay a pecuniary penalty that the court considers appropriate if the court is satisfied that the person has contravened a civil penalty provision.

51    Sections 545(3) and 546(1) of the FW Act confer powers on eligible State and Territory courts, and, at least implicitly, vest them with jurisdiction to determine whether to exercise those powers: see Kronen v Commercial Motor Industries Pty Ltd (2018) 264 FCR 408; [2018] FCAFC 136 (Kronen) at 415 [31]-[32].

52    Section 13(1) of the LSL Act provides that, where a worker is not granted long service leave in accordance with the LSL Act, or the worker does not receive a payment to which they are entitled under the LSL Act, the SAEC may, on application under s 13, order the employer to grant the leave or make the payment. Section 13(1) confers both jurisdiction and power on the SAEC. However, as was explained in Kronen at 415 [30], the effect of s 39 of the Judiciary Act 1903 (Cth) is that State courts are divested of their state jurisdiction with respect to all matters referred to in ss 75 and 76 of the Constitution, and then invested with federal jurisdiction with respect to some of those matters. Any claim which might have been available to the CFMEU and Mr Collins under s 13 of the LSL Act formed part of the same “matter” as their claims pursuant to s 545(3) and 546(1) of the FW Act. That matter was one “arising under” the FW Act and thus within the jurisdiction referred to in s 76(ii) of the Constitution. The jurisdiction exercised by the SAEC in respect of the whole of the matter was federal jurisdiction. Insofar as s 13(1) of the LSL Act conferred state jurisdiction on the SAEC to determine any issue arising in the matter, that state jurisdiction was excluded by the operation of s 39 of the Judiciary Act. Insofar as s 13(1) of the LSL Act empowered the SAEC to make particular kinds of orders, the SAEC was able to exercise those powers in the exercise of the federal jurisdiction conferred upon it with respect to the matter.

53    Section 565(1) of the FW Act provides that an appeal lies to the Federal Court from a decision of an eligible State or Territory court exercising jurisdiction under the FW Act. The SAEC was exercising jurisdiction conferred by (at least) s 545 of the FW Act. Accordingly, s 565(1) confers jurisdiction on this Court to hear and determine the appeal. That jurisdiction is to be exercised by a Full Court: see Federal Court of Australia Act 1976 (Cth), s 25(1); Shahin Enterprises Pty Ltd v Mathew (2020) 274 FCR 557; [2020] FCAFC 57 at 572-5 [86]-[99].

Ground 1 – application of the concept of “number of hours worked per week” in the LSL Act to Mr Collins’s employment

54    By its first ground of appeal, Flinders Ports contends that the reference in s 3(2)(b) of the LSL Act to a worker’s “number of hours worked per week” is to be understood as a reference to hours where work is actually performed by the worker, or where the employer requires the worker to be standing by and ready to perform work. It submits that, once a worker has been dismissed from duty by the employer, the remainder of the minimum number of hours for which they are required to be paid are not “hours worked” in the sense contemplated by the LSL Act. The fact that Flinders Ports was required to make a minimum payment to Mr Collins in respect of each shift, in accordance with cl 3 of Sch 3 to the Agreement, does not mean that the number of hours for which Mr Collins was required to be paid were counted towards his “number of hours worked per week”; the concern of the LSL Act is the number of hours actually worked.

55    The task of statutory interpretation begins with a consideration of the text of the provision in question. “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” (footnotes omitted): Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at 47 [47] (Hayne, Heydon, Crennan and Kiefel JJ). Context is considered in the first instance, and not merely at some later stage, and is considered “in its widest sense”: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ). After citing these statements of principle, in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at 368 [14], Kiefel CJ, Nettle and Gordon JJ said:

… This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

56    The deputy president considered that the legislative context and purpose of the LSL Act supported the view that the expression “number of hours worked”, in s 3(2), should be interpreted as including the number of hours used to calculate minimum call out payments made to casual employees, and not only those hours for which the employees were actually on duty (that is, working or ready to work and subject to the direction of their employer). The relevant contextual consideration was that the expression was not a “standalone phrase” and is used for the purpose of identifying the means of determining an employee’s “ordinary weekly rate of pay”.

57    The general purpose of s 3(2) is to prescribe the method for calculating how employees are to be paid while on long service leave. The respondents also rely on the statement of Kourakis CJ, in Flinders Ports Pty Ltd v Woolford (2015) 121 SASR 485; [2015] SASCFC 6 (Flinders Ports v Woolford), that “[t]he purpose of the averaging over a long period of time is to strike a fair balance between employer and employee, and to minimise manipulation of the average”. However, this observation is of limited assistance in the resolution of the present issue. Chief Justice Kourakis was referring specifically to the purpose served by averaging the number of hours worked per week over a period of three years. While it may be accepted that the LSL Act generally can be described as striking a balance between the interests of employers and employees, the precise way that balance that is struck can only be ascertained by construing and applying the language actually used in its provisions: see, eg, Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 at 142-3 [5]-[7] (Gleeson CJ), quoted in Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619; [2013] HCA 36 at 632-3 [40].

58    The deputy president expressed her conclusion as to the operation of s 3(2) of the LSL Act as follows (at [108]-[109]):

I find that for the purposes of the LSL Act, the hours worked per week include all the hours for which Mr Collins was paid per call out, regardless of whether he was required to perform duties for a lesser period than the minimum call out period, as from the time of attending for duty he was obliged to stay and perform tasks as allocated until he was dismissed from that duty, and Flinders Ports was obliged to pay him for that minimum period of duty whether it allocated tasks to him or not.

That arrangement, where each is contractually obliged to the other for the minimum period, is properly to be considered “work” in the context of this employment relationship.

59    As has been noted at [15] above, the deputy president appears to have proceeded on the basis of an acceptance that, as a matter of fact, once the “job” or “jobs” for which he was required were complete, Mr Collins would be “dismissed and able to leave the worksite”. In this part of her Honour’s reasons, she was not making factual findings but describing the way she considered the LSL Act should be understood to operate. In that context, her Honour’s reference to Mr Collins being “contractually obliged to [Flinders Ports] for the minimum period” must be a reference to Mr Collins’s contractual obligation to make himself available to work for the whole of the minimum period in each case where he accepted a “job”, rather than a finding that he was never actually dismissed from duty before the end of the minimum period.

60    In support of her construction, the deputy president (at [96]-[98]) considered that some assistance could be derived from authorities that have referred to the meaning of “ordinary weekly rate of pay” in the LSL Act. In particular, her Honour referred to the following passages from the judgment of Judge Parsons in Jongewaard v Dall [1992] SAIRC 11:

The meaning of the phrase “ordinary weekly rate of pay” has to be determined from its context in the [LSL] Act. In that context the word “ordinary”, as it is used in the phrase “ordinary weekly rate of pay”, does not simply mean ordinary in the sense of commonplace, normal or not exceptional. The word “ordinary”, when used in the context of a weekly rate of pay, has acquired a slightly different meaning. It refers to the rate of pay related to the hours of work which form the basis or core of the particular contract of employment between the parties.

…

The exclusion of overtime, shift premiums and penalty rates and the specific saving of the benefits applying to commission, casual workers and workers’ accommodation are all consistent with an intention to confine the calculation of an entitlement to long service leave to that part of the worker’s remuneration which is essential to the contract between the parties.

(Emphasis added by the deputy president.)

61    However, in the context of the LSL Act, “ordinary weekly rate of pay” is defined in s 3(2). In SkyCity Adelaide Pty Ltd v Treasurer of South Australia (2024) 282 CLR 479; [2024] HCA 37, the High Court referred (at 488 [30]) to “the ‘orthodox view’ that ‘[i]t would be quite circular to construe the words of a definition by reference to the term defined’”, and then explained (at 488-9 [32]) that:

… there is no rule against construing words of a definition by reference to the words those terms define. The orthodox interpretative principle, properly understood, is more nuanced … The defined term itself forms part of the context within which the definition so applying must be construed. The point of the orthodox interpretative principle is not to deny that the defined term itself forms part of the context but to emphasise that the purpose of a definition is to fix or to clarify the meaning of the defined term. Fidelity to that purpose makes it of “fundamental importance” that a definition is construed in the context of the substantive provision to which it applies according to its “natural and ordinary meaning unless some other course is clearly required” and that “limitations and qualifications are not read into a statutory definition unless clearly required by its terms or its context”.

(Footnotes omitted.)

62    While it may therefore be accepted that the fact that s 3(2) of the LSL Act informs the operation of a statutory concept expressed by the words “ordinary weekly rate of pay” is relevant to the construction of s 3(2), that does not permit general explanations of that concept to be applied in lieu of the relevant statutory language. That is particularly so where the evident purpose of s 3(2)(b) is to prescribe a specific method for determining the “ordinary weekly rate of pay” which is to apply in the case of casual employees, and which is expressed to be a “qualification” to the general approach to assessing an employee’s “ordinary weekly rate of pay” which otherwise applies.

63    The LSL Act is general legislation that applies to all employment having particular kinds of connections to the state of South Australia, and which must be given a meaning that is capable of sensible application across the whole range of specific present and future employment situations. While consideration of the kinds of payment arrangements provided for in industrial instruments may potentially assist in a general way, by shedding light on the kinds of arrangements which exist and to which the terms of the LSL Act may fall to be applied, it is not appropriate to interpret the provisions of the LSL Act by reference to the provisions of particular industrial instruments. Accordingly, “the meaning of s 3(2)(b) [of the LSL Act] is to be determined from the natural and ordinary meaning of its words in the context in which they appear”: see, eg, Barossa Quarries Pty Ltd v Keynes [2005] SAIRC 54 at [13].

64    Section 3(2)(b) of the LSL Act applies to employees across a range of circumstances, and is not limited in its application to casual employees. It also applies to all employees employed on an hourly basis at an hourly rate of pay, employees whose ordinary hours of work per week and whose ordinary rate of pay was consequently varied, and employees employed on a permanent part-time basis – any of whom may ordinarily be entitled to, or may request, unpaid leave. The fact that s 3(4) of the LSL Act makes express reference to s 3(2)(b) does not, therefore, entail that some meaning must be given to the concept of being “on unpaid leave for the whole of the week” which would have application to circumstances that are ordinarily encountered by casual employees. In any case, as mentioned at [31]-[32] above, the FW Act provides for the taking of certain kinds of unpaid leave by casual employees, and individual awards or enterprise agreements may also make provision for unpaid leave (and cll 7.4.3 and 7.5.2.2 of the Agreement provide examples of such provisions).

65    In the employment law context, the concept of “work”, which forms part of the expression “number of hours worked”, is not limited to its most narrow ordinary English meaning, namely the number of hours actually spent by an employee engaged in exertion, labour or toil. It is well understood as extending to periods when an employee is required to be available to the employer to perform work and is subject to the direction of the employer, irrespective of whether the employee is actively engaged in a task: see, eg, Corporate Air Charter Pty Ltd v Australian Federation of Air Pilots [2025] FCAFC 45 at [28]-[33], and the authorities discussed there.

66    The expression “number of hours worked per week”, in the context of the LSL Act, as legislation applying to employment generally, thus naturally refers to hours for which an employee was actually required to be performing, or available to perform, duties. It is difficult to see how the words “number of hours worked per week” can be construed as a reference to the number of hours by reference to which an employee’s entitlement to payment was calculated, as opposed to the number of hours that they actually worked, in that recognised extended sense.

67    In the context of a workplace in which employees are often entitled to be paid by reference to a nominal number of hours which exceeds the number of hours actually worked by them, the calculation of long service leave entitlements by reference to the number of hours worked will tend to result in their receiving less when they are on long service leave than they usually receive when they are working. While we can understand that an employee might feel aggrieved if the amount they are entitled to receive during periods of long service leave falls well short of what they would expect to receive in weeks when they work, the prospect that such cases may arise does not provide a basis on which the expression “number of hours worked”, in legislation of general application to employment across the state, can or should be construed as meaning something other than the number of hours for which the employee was working (including standing by and ready to perform work).

68    That an employee who is on long service leave may be entitled to less (sometimes considerably less) than they usually earn when working is not, in itself, a result which can be said to be contrary to the purpose of the LSL Act. It is a natural consequence of long service leave entitlements being determined by multiplying the number of hours worked by an employee’s ordinary hourly rate of pay. To the extent that the respondents’ argument posits that a purpose of the LSL Act is to provide employees on long service leave with payments that approximate their “ordinary” weekly earnings, and that a construction that results in a substantially lesser entitlement is contrary to that legislative purpose, it (a) ignores the clear expression of the basis on which an employee’s “ordinary weekly rate of pay” is to be calculated under s 3(2)(b), and (b) potentially conflates the technical defined sense of an “ordinary” rate of pay with the general sense of the word “ordinary” (ie, the average amount of pay an employee might usually expect to receive in a week). It is inherent in the exclusion of overtime and penalty rates from the calculation of long service leave entitlements that there will be some employees whose entitlements when on long service leave fall well short of their usual weekly earnings – namely, all those for whom overtime or penalty rates make up a substantial part of their income. It cannot be said to be a purpose of the LSL Act to ensure that an employee’s long service leave entitlements reflect their “ordinary” weekly pay in a more general sense.

69    It is notable that s 3(2) of the LSL Act commences by stating, as the default definition, that a reference to a worker’s “ordinary weekly rate of pay” is a reference to the worker’s weekly rate of pay as at the relevant date exclusive of overtime, shift premiums and penalty rates. That default definition is then subject to the “qualifications” relating to specific categories of workers, which are set out in s 3(2)(a), (b) and (c). It would have been possible for s 3(2)(b) to have been drafted in a manner that more closely echoed the terms of the default definition in s 3(2), for example, by stating that, in the case of casual workers, their “ordinary weekly rate of pay” was to be their average weekly rate of pay over the preceding three years, exclusive of overtime, shift premiums and penalty rates. A rule stated in those terms would have been apt to take into account the full amount that Mr Collins was paid in the form of minimum call out payments (excluding amounts attributable to overtime, shift premiums and penalty rates). Instead, s 3(2)(b) explicitly directs attention to the “number of hours worked” during the preceding three years (emphasis added). To accept the construction advanced by the CFMEU would effectively involve rewriting s 3(2)(b) to make it more closely align with the default meaning of “ordinary weekly rate of pay” provided for in s 3(2).

70    The result should not be thought to be entirely capricious. Although minimum call out payments are calculated as a multiple of the ordinary hourly rate for casual employees, the payment of a minimum amount without reference to the number of hours actually worked by an employee can be seen as somewhat analogous to a shift premium or call out allowance. An evident purpose of fixing a minimum payment, regardless of whether an employee is required to work the full number of hours by reference to which it is calculated, is to compensate for the inconvenience of travel and the disruption of being “called out”, even if the actual work takes little time. Further, the number of hours used to calculate the minimum call out payment varies according to the day of the week and time of day when the call out commences, with higher call out payments being associated with working at less “sociable” times rather than times when the actual hours worked are expected to be longer. It is far from obvious that the general legislative purpose of s 3(2) of the LSL Act is inconsistent with the calculation of long service leave entitlements by reference to the number of hours actually worked, rather than the number of hours nominally used to calculate employees’ minimum payment for particular instances when they are called out to work.

71    At the hearing of the appeal, it became apparent that the parties disagreed regarding the interpretation of the words “Employees are considered to be on duty during the entire minimum call out payment period until dismissed”, which appear in each of cll 3.6.1, 3.6.2, 3.6.4, and 3.6.5 (Considered on Duty Clause). (The omission of the Considered on Duty Clause from cl 3.6.3 appears likely to have been inadvertent.) Flinders Ports submits that the Considered on Duty Clause is to be understood as meaning that employees are to be considered to be on duty until the end of the minimum call out period or until they are dismissed, whichever is the earlier. The respondents submit that the Considered on Duty Clause is to be understood as meaning that employees are to be considered to be on duty for the whole of the minimum call out period and thereafter until such time as they are dismissed. It appears that the deputy president (at [104]) may have assumed or accepted the latter construction, although her Honour did not expressly refer to the words “until dismissed”.

72    The Considered on Duty Clause is grammatically ambiguous. We are conscious that the Court does not have before it any extrinsic material that would assist in ascertaining its proper interpretation. However, even if it be assumed that the respondents’ construction of the words used in the Considered on Duty Clause is correct, in the context of a clause imposing an obligation on Flinders Ports to make “minimum payments” when an employee is called out for work, the use of the expression “considered to be on duty” suggests that, for that particular purpose (ie, for the limited purpose of identifying the minimum period by reference to which the payment due is to be fixed) an employee is, counterfactually, to be considered (ie, taken, or deemed) to be on duty for the whole of the minimum period (and thereafter until dismissed), even if they were not in fact on duty for the whole of that period. In other words, even on the respondents’ construction, the Considered on Duty Clause naturally seems to be directed to clarifying that, for the particular purpose of determining the payment due in respect of a call out, an employee will be treated as if they were on duty for the whole of the minimum period, even if that is not the reality. That does not affect the need to apply the LSL Act concept of “number of hours worked” by determining the number of hours the employee was actually working (in the extended employment law sense discussed above).

Ground 3 – challenge to findings that particular periods were periods of unpaid leave

73    There is no dispute that Mr Collins was absent and unavailable for work for “the whole of the week” for the periods that the SAEC determined must be excluded from the calculation of Mr Collins’s long service leave entitlements (ie, from 3 to 16 November 2020, and from 29 May to 6 June 2023). The issue in dispute in relation to ground 3 of the appeal is whether Mr Collins is properly characterised as being absent on “unpaid leave” during those periods.

74    Flinders Ports contends that the expression “unpaid leave” in the LSL Act is used in the ordinary sense which is generally understood in the employment context. In Flinders Ports v Woolford, Stanley J contrasted “leave” with the absence of a worker from employment due to a compensable injury, describing the concept of leave as follows (at 513 [105]):

… The deceased was not absent from work with the permission of the employer. There was nothing for the employer to permit. The deceased’s absence from work was due to an inability to perform work duties due to injury. The employer can be said to have permitted his absence from work only to the extent it took no action to terminate the contract of employment until 23 September 2011. … Leave is an entitlement relieving the employee from the performance of work duties, which is conferred by the terms of the employment contract, an industrial instrument or Act of Parliament that applies to that employment. Usually such leave is paid. Leave can also be granted to an employee by an employer as an indulgence. The employee is relieved from the performance of work outside of any contractual or statutory context. Usually in those circumstances it is unpaid. …

75    The essence of casual employment, in the meaning that it has under the general law, is the absence of a “firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work”, and also absent is any reciprocal commitment from the employee to the employer: WorkPac Pty Ltd v Rossato (2021) 271 CLR 456; [2021] HCA 23 (WorkPac v Rossato) at 470 [32], 475 [49], 476 [51] (Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ); see also WorkPac Pty Ltd v Skene (2018) 264 FCR 536; [2018] FCAFC 131 at 575 [172]-[173] (WorkPac v Skene); Hamzy v Tricon International Restaurants (2001) 115 FCR 78; [2001] FCA 1589 at 89 [38], quoted in WorkPac v Rossato at 471 [34]-[35]. Casual employees are generally “therefore able to make their own arrangements for rest and recreation”, and are thus at liberty to decline work from their employer, or make themselves unavailable for work on particular occasions, without the need to apply for and obtain leave: see WorkPac v Skene at 574 [168]; WorkPac v Rossato at 472 [36]. When a casual employee is absent from work because they have elected, in accordance with the terms of their employment, to make themselves unavailable, they need not be absent on “leave”.

76    However, as the provisions of the Agreement and the FW Act to which reference has been made at [31]-[32] and [42]-[44] above demonstrate, employment legislation and instruments may nevertheless provide for entitlements of casual employees to unpaid leave in some circumstances. The provision for entitlements to particular kinds of leave for casual employees, such as compassionate leave and carer’s leave, has significance in that an employee who is entitled to, and who takes, such leave, is protected from adverse action by the employer by reason of their exercise of that workplace right.

77    As explained at [44] above, the deputy president found that the effect of Pt 2 of Sch 3 to the Agreement was that all employees of Flinders Ports working at regional ports were entitled to 10 days’ personal leave; that, in the case of casual employees, that leave was unpaid; and that the entitlement (including the entitlement for casual employees) applied in circumstances in which a permanent employee would be entitled to paid personal leave in accordance with the National Employment Standards (ie, for one of the reasons set out in s 97 of the FW Act).

78    The deputy president’s conclusion as to the construction and operation of Pt 2 of Sch 3 is accepted by Flinders Ports on the appeal. However, Flinders Ports submits that the evidence before the deputy president did not support her Honour’s conclusion that Mr Collins was absent on personal leave for the periods from 3 to 16 November 2020 and from 29 May to 6 June 2023.

79    Assuming that Mr Collins was (in the language of s 97 of the FW Act) “not fit for work because of a personal illness, or personal injury, affecting [him]”, he was entitled to utilise unpaid personal leave in accordance with Pt 2 of Sch 3 to the Agreement. At least theoretically, therefore, Mr Collins was in a position to elect whether to use personal leave or simply to advise Flinders Ports that he was making himself unavailable for work. The main practical consequences of electing to take unpaid personal leave rather than merely making himself unavailable for work would seem to have been that:

(a)    the “points” which would otherwise have been allocated in accordance with Pt 2 of Sch 3 to the Agreement would not have been allocated, with a potential consequential effect on the rostering of Mr Collins;

(b)    the accrued balance of personal leave against his name would be reduced; and

(c)    to the extent that the period of unpaid leave extended over a whole week, the calculation of his long service leave entitlements in respect of the year in which the leave was taken would be increased because any whole weeks for which leave was taken would be disregarded in making the calculation.

The period from 3 to 16 November 2020

80    Mr Collins’s affidavit evidence in relation to the circumstances of his unavailability for work between 3 to 16 November was as follows:

On 27 October 2020, I applied for 14 calendar days or two weeks’ unpaid personal leave from 3 November 2020 to 16 November 2020. My application for leave was approved by [Flinders Ports]. I did not attend for duty and perform any work for [Flinders Ports] during this period. I was not paid any wages by [Flinders Ports] for this period.

81    Mr Collins’s affidavit annexed a copy of a completed leave form seeking unpaid personal leave.

82    The deputy president noted (at [129]) that the absence of any specific leave approval for Mr Collins’s request had to be considered in a context where Flinders Ports had not established a system for casual employees to apply for, and for Flinders Ports to grant, unpaid leave. Her Honour said (at [131]):

The distinction between a casual worker choosing to be unavailable and exercising an entitlement to unpaid leave may in some circumstances be a fine one. However, the existence of the entitlement to unpaid leave means that the distinction is real and has consequences. Therefore, in light of those consequences, it is incumbent upon the employer to provide a system for determining and recording whether the entitlement to unpaid leave is being exercised.

83    On this basis, her Honour considered (at [132]) that Flinders Ports “should not be able to rely on [its failure to provide such a system] to defeat claims for the legitimate exercise by its employees of their entitlements to unpaid leave”.

84    The deputy president found, on the basis of Mr Collins’s unchallenged affidavit evidence, that Mr Collins had submitted a form applying for personal leave in relation to the period from 3 to 16 November 2020. Her Honour went on to conclude (at [136]-[137]):

… There was no request from Flinders Ports for further information to ascertain Mr Collins’ eligibility, nor was there a response approving or denying the leave. However, it was agreed that during that period, Mr Collins was not offered any shifts, consistent with his notice that he would not be available.

I find that on that occasion, Mr Collins notified Flinders Ports that the reason for his unavailability was due to his need for unpaid personal leave, and that by adjusting its conduct in not offering him shifts for that period, Flinders Ports tacitly approved the leave. Mr Collins was exercising his entitlement to unpaid personal leave and Flinders Ports did nothing to refuse or deny that entitlement.

85    Flinders Ports submits that this conclusion is wrong because:

(a)    at the relevant time, Mr Collins could not have had an entitlement to 14 days’ unpaid personal leave, because Pt 2 of Sch 3 to the Agreement provides for “10 days per year unpaid personal leave” and the entitlement does not accrue year to year, so that he could have been entitled, at most, to 10 days’ unpaid leave; and

(b)    Mr Collins’s affidavit simply asserted that Flinders Ports approved his application for leave, which was received as evidence of Mr Collins’s state of mind only, but in any event, Mr Collins’s evidence does not support the conclusion which the deputy president reached because:

(i)    the leave application form annexed to Mr Collins’s affidavit was not signed by any manager or representative of Flinders Ports;

(ii)    Mr Collins did not identify any individual as the person who had approved his leave application;

(iii)    Mr Wilkins had no recollection of approving the leave; and

(iv)    Mr Wilkins recalled “that Mr Collins was unavailable for this period”.

86    Insofar as Flinders Ports submits that the deputy president found that the entitlement of casual employees to unpaid personal leave “does not accrue year to year”, it is not evident that her Honour explicitly addressed that question. It would be possible to construe the reference to “10 days per year unpaid personal leave” in Pt 2 of Sch 3 to the Agreement as a reference to an entitlement that accumulates from year to year, in the same way as personal leave for permanent employees under the National Employment Standards, which is also referred to in the provision. It is not necessary to decide whether Mr Collins’s personal leave was capable of accruing from year to year, but we shall assume (without deciding) that that was the case, and that he had accrued an entitlement to at least 14 days’ unpaid personal leave. There was no evidence directly addressing the extent of Mr Collins’s accrued unpaid personal leave entitlement as at 3 November 2020, but he had been working since 2010, and there is no suggestion that he had taken any unpaid personal leave before.

87    The relevant conclusion of the deputy president does not seem to have been based on a factual finding that a manager or representative at Flinders Ports had signed, or otherwise explicitly approved, Mr Collins’s request for personal leave. Rather, it was based on the view that (a) Mr Collins had an “entitlement” to take personal leave; (b) he had done all that he could to apply for such leave; and (c) in the absence of a system for approving such leave, the fact that he was removed from the work roster in accordance with his request should be understood as amounting to tacit approval.

88    It may be accepted that Flinders Ports ought to have maintained a system to enable casual employees to apply for and be granted personal leave, and to record the accrual and taking of leave, to which they were entitled in accordance with the Agreement. Its failure to do so may have constituted a contravention of one or more provisions of the Agreement, the FW Act or the FW Regulations. However, the issue on the appeal is whether, as a matter of fact, the period from 3 to 16 November 2020 was taken by Mr Collins as personal leave. That could only be so if Flinders Ports approved his application for personal leave. On the appeal, counsel for the respondents did not attempt to support the deputy president’s finding on the basis that Flinders Ports’ failure to establish an appropriate system for the grant of leave could somehow lead to the conclusion that Flinders Ports should be deemed to have approved leave; it was accepted that the issue was whether the factual inference should be drawn that Flinders Ports had granted Mr Collins personal leave.

89    The unchallenged evidence of the relevant employee acting on behalf of Flinders Ports, Mr Wilkins, was that he did not believe that casual employees were entitled to personal leave at all. In those circumstances, the inference to be drawn is that neither Mr Wilkins, nor anyone else acting on behalf of Flinders Ports, approved Mr Collins’s application for leave. In some circumstances, conduct of an employer – such as not rostering an employee for work during a period, or not expressing any disapproval about an employee’s absence from work during a period – may well support an inference that the employer had “tacitly approved” an employee’s request for leave covering that period. However, the fact that Mr Wilkins did not roster Mr Collins for work in the period from 3 to 16 November 2020 was entirely consistent with his belief that, as a casual employee, Mr Collins was entitled to declare himself unavailable for work for any reason (or for no reason), without the need to take personal or other leave.

90    Additionally, the evidence does not establish that Mr Collins did, in fact, have an “entitlement” to take unpaid personal leave from 3 to 16 November 2020, such that Flinders Ports was obliged to approve his application for leave, as the deputy president found. Although we are prepared to assume that Mr Collins had accrued an entitlement to unpaid personal leave, the intended effect of Pt 2 of Sch 3 to the Agreement appears to be that such leave may be taken only “where Personal Leave would be allowed to a permanent employee as per the [National Employment Standards]” – that is, relevantly, where Mr Collins was “not fit for work because of a personal illness, or personal injury, affecting [him]”. There was no evidence, whether in Mr Collins’s affidavit or the leave application form that he submitted, to establish that he was “not fit for work because of a personal illness, or personal injury, affecting [him]” from 3 to 16 November 2020.

91    For these reasons, we respectfully disagree with the deputy president’s conclusion that Mr Collins was to be regarded as being on unpaid personal leave for the period from 3 to 16 November 2020 for the purposes of determining his “ordinary weekly rate of pay”.

The period from 29 May to 6 June 2023

92    Mr Collins’s affidavit evidence in relation to the circumstances of his unavailability for work from 29 May to 6 June 2023 was as follows:

On 29 May 2023, I called my supervisor Mr Andrew Wilkins and told him that I was sick with COVID 19 and that I would not be available to be booked for Call Outs during the period 29 May 2023 to 6 June 2023. I did not attend for duty and perform any work for [Flinders Ports] during this period. I was not paid any wages by [Flinders Ports] for this period.

93    Having considered this evidence, the deputy president concluded (at [139]):

In the absence of any system for applying for unpaid personal leave, when there was an entitlement to that leave in the Agreement, I find that by its acceptance of his absence and the reasons for it, Flinders Ports tacitly approved the leave to which Mr Collins was entitled, which was due to his own illness.

94    Flinders Ports submits that this conclusion was erroneous because:

(a)    Mr Collins made the decision and advised Mr Wilkins that he would not be available for work, as he was entitled to do as a casual employee;

(b)    in contrast to the period from 3 to 16 November 2020, Mr Collins did not file an application for leave (and he provided no explanation as to why he did not do so), and consequently, no application for leave was capable of being approved by Flinders Ports, whether “tacitly” or otherwise;

(c)    there was no other evidence that Mr Collins was purporting to exercise any entitlement to unpaid personal leave in accordance with the terms of the Agreement or the FW Act in respect of all or any part of the period from 29 May to 6 June 2023; and

(d)    there was no basis for the deputy president to equate the absence of a formal process for casual employees of Flinders Ports to apply for leave with “tacit approval” of any alleged application for leave.

95    One possible explanation why Mr Collins did not file an application for leave in respect of the period from 29 May to 6 June 2023 is that when he filed one in 2020 nothing was done by Flinders Ports to respond to it. The fact that it was Mr Collins who made the decision to make himself unavailable for work due to his illness is neutral in determining whether the period was a period of unpaid leave. An employee who seeks to utilise available personal leave because they are unable to work due to illness will ordinarily need to inform the employer both of the fact that they are unwell and of their unavailability to attend for work.

96    However, there is nothing in Mr Collins’s evidence to suggest that he ever sought approval to take personal leave in respect of the period from 29 May to 6 June 2023, or said anything to inform Flinders Ports that he wished to take that time as personal leave. Rather, the effect of his brief affidavit evidence on this topic is that he simply told Mr Wilkins that he would not be available to work in that period, and the reason why. It is true that the reason he gave was consistent with a reason that might have entitled him to take unpaid personal leave, but nothing in his account of what was said would have communicated that he was applying for, or seeking to use his entitlement to, unpaid personal leave. While it is understandable that he may not have done so in circumstances where Flinders Ports appears to have been operating on the basis that casual employees had no entitlement to unpaid personal leave, it is not possible to draw the factual inference that Flinders Ports granted Mr Collins personal leave.

97    For these reasons, we do not agree with the deputy president’s conclusion that Mr Collins was to be treated as being on unpaid personal leave in respect of the period from 29 May to 6 June 2023, for the purposes of determining his “ordinary weekly rate of pay”.

98    The consequence of these conclusions is that ground 3 should be upheld.

Conclusion

99    For the reasons explained above, both grounds 1 and 3 should be upheld. The appeal should be allowed. The declarations made by the deputy president on 18 September 2025 and the orders made by the deputy president on 26 September 2025 should be set aside, and in lieu thereof there should be an order that the CFMEU’s applications to the SAEC be dismissed.

Associate:

Dated:    25 September 2026