Jemena Asset Management (3) Pty Ltd v Coinvest Ltd

The High Court of Australia considered an appeal by Jemena Asset Management (3) Pty Ltd and others against Coinvest Ltd concerning the constitutional validity of the *Construction Industry Long Service Leave Act 1997* (Vic) (the State Act). The appellants, who were employers bound by federal industrial instruments made under the *Workplace Relations Act 1996* (Cth) (the Commonwealth Act), argued that the State Act, which established a scheme for portable long service leave in the construction industry, was inconsistent with the federal instruments and therefore invalid under section 109 of the Constitution.

The central legal issue before the High Court was whether the State Act was inconsistent with the Commonwealth Act, as embodied in the federal industrial instruments. This required the Court to determine if the State Act, by providing for portable long service leave, either directly conflicted with or "covered the field" of long service leave entitlements as established by the federal instruments, thereby altering, impairing, or detracting from them.

The Court reasoned that while the federal instruments comprehensively dealt with long service leave entitlements and obligations arising directly within the employment relationship, they did not address or provide for portable long service leave benefits for workers in the construction industry who moved between employers. The Court found that the State Act operated in a manner that was complementary to, rather than in conflict with, the federal instruments. Applying the tests for direct and indirect inconsistency, the Court concluded that there was no real conflict between the State Act and the federal instruments, as the State law did not alter, impair, or detract from the entitlements created by the federal law. Consequently, the State Act was not invalid by reference to section 109 of the Constitution.

The appeal was dismissed with costs.