Jemena Asset Management Pty Ltd v Coinvest Limited
Citation: [2009] FCAFC 176
What happened
Jemena companies (electricity distribution businesses in Victoria) were bound by a federal award and certified agreements providing long service leave entitlements of 13 weeks after 10 years service plus additional weeks for further service. They were also covered by the Victorian Construction Industry Long Service Leave Act 1997, which established a portable long service leave scheme funded by employer charges. The scheme provided for entitlements to monetary benefits paid from a fund based on continuous service in the construction industry.
What was decided
The Jemena companies challenged whether there was an inconsistency under s.109 of the Constitution between the federal industrial instruments (providing paid leave entitlements) and the state act (providing monetary benefit entitlements). The Full Bench dismissed the appeal. The court held there was no inconsistency. The federal instruments provide an entitlement to take paid long service leave; the state scheme provides an entitlement to monetary benefits from a fund. These different mechanisms can operate concurrently. Employers remain bound by both.
What it means for employers
Employers bound by federal awards or agreements must comply with those instruments even where state-based schemes also apply. There is no automatic inconsistency between federal and state provisions for long service leave. Employers may need to satisfy obligations under both schemes simultaneously.
What it means for employees
Employees may benefit from both federal and state long service leave entitlements where they apply. Portable schemes can supplement or complement traditional leave entitlements. The operation of both schemes can provide different forms of benefit (paid leave vs. monetary payments).
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This summary was drafted from the published decision and reviewed before publishing. It is general information, not legal advice. For your specific situation, speak to the Fair Work Ombudsman (13 13 94) or a qualified lawyer. About these summaries & corrections →