Pedantry gone mad; done in by strict interpretation of redundancy and long service leave under the NES

The Fair Work Act and the national employment standards (NES) provide that where an employee was employed under a federal award as at 31 December 2009 and the employee was entitled to long service leave under such an award, the State long service laws, which in Western Australia constitute almost all of the long service leave entitlements of Western Australians, do not apply. In
Maughan Thiem Auto Sales Pty Ltd v Cooper [2014] FCAFC 94 a Full Federal Court held that this was the case even where an employee, who was at all material times covered by a federal award which contained long service leave entitlements, was not entitled to pro rata long service leave because he had completed only 8 of the 10 years required to accrue a pro rata entitlement under that instrument. In doing so the Court overturned a decision of a South Australian Industrial Magistrate who had held that the employee was not covered (sec 113 Fair Work Act) because he had not accrued any entitlements under the award. The Court also confirmed that statutory redundancy under the NES is calculated by reference to an employee’s base rate of pay and not what he or she may be accustomed to receive, in this case a premium fort working an afternoon shift.