Conroy’s Smallgoods v Australasian Meat Industry Employees Union [2023] FCAFC 59

Conroy’s Smallgoods v Australasian Meat Industry Employees Union [2023] FCAFC 59
Full Court of the Federal Court of Australia
Bromberg, O’Sullivan, & Raper JJ
Employment law – an employer did not provide long service leave to a casual employee – s113 is the section in the National Employment Standards in Part 2-2 of the Fair Work Act 2009 (Cth) that sets out the Commonwealth entitlement to long service leave – ss26 and 27 have the effect that state and territory entitlements to long service leave will not apply where s113 does – s113 relevantly provides that an employee is entitled to long service leave in accordance with the terms of any award that “would have entitled the employee to long service leave” immediately before the commencement of the Fair Work Act – immediately before the commencement of the Act, the employer had been party to an award under which casual employees had not been entitled to long service leave – the Union sued in the South Australian Employment Tribunal – the Tribunal held that s113 did not apply, because the award was not one that “would have entitled the employee to long service leave”, so the state Long Service Leave Act 1987 (SA) did apply, and the employee was entitled to long service leave under that state legislation – the employer appealed – held (by majority, Bromberg J dissenting): it was necessary to construe the expression “would have entitled the employee to long service leave” in the context of the Fair Work Act as a whole – the mischief s113 seeks to avoid is that there were many different state and territory long service leave schemes and the Fair Work Act was introducing a national system – a literal construction of the words “would have entitled the employee to long service leave” as applying only where there actually were entitlements would an improbable and impractical result – it would mean some employers who had no obligation to pay long service leave immediately before the commencement of the Fair Work Act would be liable to pay long service leave after the commencement of that Act – it would have been absurd for Parliament to have caused employers to move into a scheme where they would be criminally liable for non-compliance without any warning and without any guidance – on their proper construction, the words “would have entitled the employee to long service leave” continued the previous situation under the award, whether or not there was an entitlement to long service leave – it did not just apply where there was actually an entitlement to long service leave, thereby leaving employers subject to various state and territory regimes cases where there was not – that is, the circumstances where a previous award “would have entitled the employee to long service leave” include the circumstance where that award “would have entitled” a nil amount, and s113 then preserves that circumstance as Commonwealth law – appeal allowed, decision of the Tribunal set aside, and declarations made that, pursuant to s113(1) of the Fair Work Act, there are relevant long service leave terms in the relevant Award, and the employee’s entitlement to long service leave is nil.
Conroy’s Smallgoods