Mills Transport loses bid to deny drivers long service leave despite the fact they were hired on a seasonal basis
By Brad Gardner | January 29, 2009
A trucking company has lost its bid to deny drivers long service leave despite the fact they were hired on a seasonal basis.
National operator Mills Transport has been ordered to pay annual leave for three of its cane drivers who all worked for the company for more than 10 years at the Condong, Broadwater and Harwood sugar mills.
The case, which was held in the NSW Industrial Court, focused on what constituted continuous service.
Lawyers for Mills Transport attempted to argue the drivers did not qualify for long service leave because they were only employed during the cane season period, which ran for about six months.
Murwillumbah depot Executive Director Kelvin Mills told the court the drivers were given termination payments after cane season finished, which Mills argued meant there was no continuous service.
Justice Wayne Haylen, however, said evidence showed the cane drivers were not intermittently employed.
“The evidence does not suggest that there was a deliberate termination of employment at the end of the season with the intention of starting afresh in an employment relationship in the next season,” Haylen ruled.
Haylen found the drivers were entitled to leave because they had only signed one application upon beginning work and the company operated on the proviso workers who performed well would return the following season.
Furthermore, the court was told Mills Transport allowed annual leave and sick pay to accrue from year to year, meaning drivers should not have been considered as short-term employees.
The company also used a preference system for senior drivers and had agreed to work towards giving seasonal workers full-time employment.
“All of these matters speak of long-term and ongoing, stable employment to be performed during the sugar cane seasons,” Haylen said.
The Transport Workers Union (TWU) represented three of the drivers, and claimed the operator owed them compensation under the Long Service Leave Act.
The TWU argued the drivers had on occasion raised the issue of long service leave, but the company had told them they were not entitled to it.
Lawyers for Mills Transport claimed the TWU in 1996 had accepted a deal with the company where a number of “trade-offs” such as long service leave were made in return for rate increases under an enterprise agreement.
The TWU refuted the claim, but Lismore depot Executive Director Reginald Mills maintained the deal “was part of the overall package”.
The issue was raised again when negotiations began into a new agreement in 2003.
However, Mills Transport had lost the contract to operate the mills, at which point the TWU proposed pro rata in return for long service.
“During the discussions held, Mr Reginald Mills informed the TWU representatives that there was no obligation to pay long service leave,” court documents say.
Tracey Mills from the company’s Lismore depot also denied the TWU had pushed for leave entitlements, saying the issue was not raised in discussions in 1999 or 2000.
Mills told the court while the company thought it had no obligation to the drivers, it would nonetheless look at the matter “in the interests of conciliation”.
At least one driver had worked for the operator for 20 years. Ken Bryant began in June 1985 and worked for Mills Transport until December 2004.
Bryant was one of the claimants represented by the TWU. Another applicant had worked for Mills from 1989 to 2004, with the last applicant beginning work in 1993 and finishing in 2004.
Haylen ruled each party pay its own costs, with the TWU responsible for determining how much compensation it wants to seek from Mills Transport.