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Long Service Leave - Federal agreement overrides state entitlement |
The courts have found that where state legislation conferred benefits to employees not provided under the federal legislation, the federal agreement prevailed. As a result, the casual employees in question in the case could not receive long service leave entitlements. |
The Australian Constitution states that where there is inconsistency between Commonwealth and state law, Commonwealth law will prevail. In the area of employment, inconsistencies between federal and state legislation, awards and agreements are important for employers and employees. |
Mr X had been employed continuously as a casual employee for over 16 years. A federal agreement did not provide casual employees with long service leave entitlements, while state legislation did. |
The basic question in the case was whether or not the federal agreement intended to cover the relevant field of employment entitlements, thereby excluding any state legislation purporting to enlarge them. This is answered by the test of whether or not the state legislation or instrument alters, impairs or detracts from the operation of the federal agreement. |
In this case the federal agreement covered all employees, casual and non-casual. As such, although casuals were not entitled to long service leave, it was clear that the agreement-makers had considered whether or not they should be given these entitlements. This meant that it was covered by the federal instrument and consequently, the state law was inoperative to the extent of the inconsistency. |
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