Crowe v UCS Developments Pty Ltd - [2003] NSWIRComm 234 - NSWIRComm 2003 case summary — Zoe

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Crowe v UCS Developments Pty Ltd

[2003] NSWIRComm 234

Industrial Relations Commission (NSW)|2003-07-01|Before: Wright J, Walton J, Marks J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2003-07-01

Before

Wright J, Walton J, Marks J

Source

Original judgment source is linked above.

Judgment (85 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Crowe v UCS Developments Pty Ltd [2003] NSWIRComm 234 APPLICANT: Damon Anthony Crowe

[3]

PARTIES : RESPONDENTS: UCS Developments Pty Ltd Unified Communication Systems Limited Mr Geoffrey Gribble Quantum Securities Pty Ltd FILE NUMBER: IRC 6856 of 2001 CORAM: Wright J President; Walton J Vice-President; Marks J Unfair contract - Reference to Full Bench - Questions of law - Whether application to join additional respondents precluded by s108B of Industrial Relations Act 1996 - Nature of power under s106 - Statutory interpretation - Need to construe s108B in light of structure and effect of s106 - Held, addition of respondents not precluded, in this case, by s108B - Questions answered - Orders made. CATCHWORDS : Statutory interpretation - Unfair contract - Reference to Full Bench - Questions of law - Whether application to join additional respondents precluded by s108B of Industrial Relations Act 1996 - Nature of power under s106 - Need to construe s108B in light of structure and effect of s106 - Held, addition of respondents not precluded, in this case, by s108B - Questions answered - Orders made. Industrial Arbitration Act 1940 s 88F Industrial Relations Act 1996 s 106 s 105 s 107 s 108A s 108B s 109 s 170 Industrial Relations Amendment (Unfair Contracts) Act 2002 LEGISLATION CITED : Industrial Relations Commission Rules 1996 r 83 r 89 Interpretation Act 1987 s 5 s 30 Limitation Act 1969 s 78 Supreme Court Rules 1970 Part 8 rule 11 Attorney-General (Qld) v Australian Industrial Relations Commission, Minister for Employment and Workplace Relations v Australian Industrial Relations Commission (2002) 76 ALJR 1502 Bell v Macquarie Bank Limited (No.4) (1999) 93 IR 191 Bowker v Software Engineers Australia (NSW) Pty Limited [2003] NSWIRComm 213 Brown v DML Resources (No 3) [2001] NSWSC 719 Brown v Rezitis (1970) 127 CLR 157 Bull v Attorney General of New South Wales (1913) 17 CLR 370 Chang Jeeng v Nuffield (Australia) Proprietary Limited (1959) 101 CLR 629 Chu Kheng Lim v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 Commonwealth of Australia v Mewett (1997) 191 CLR 471 Custom Credit Corporation Ltd v Goldsmith [1976] AR (NSW) 98 Davies and Jones v Western Australia (1904) 2 CLR 29 Director of Public Works v Ho Po Sang [1961] AC 901 Esber v The Commonwealth of Australia (1992) 174 CLR 430 Drinan v Hickey (1982) 11 NSWLR 744 Fernance v Nominal Defendant (1989) 17 NSWLR 710 Fisher v Hebburn Limited (1960) 105 CLR 188 Georgiadis v Australian Overseas Telecommunications Corporation (1994) 179 CLR 297 Hollingsworth v Commissioner of Police (1998) 81 IR 276 CASES CITED : Holmes v Permanent Trustee Company of New South Wales Ltd (1932) 47 CLR 113 Horsell v Chegwyn Insurance Brokers [2002] NSWIRComm 293 Kennedy v Contract Transport Solutions [2003] NSWIRComm 158 King v State Bank of New South Wales [2002] NSWIRComm 353 Kurnow v O'Sullivan (No.2) (1976) 11 ALR 465 L'Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Company Limited (1994) 1 AC 486 Madden v Fisher (2002) 54 NSWLR 179 Maxwell v Murphy (1957) 96 CLR 261 Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014 Ogden Industry Pty Limited v Lucas (1967) 116 CLR 537 Ratcliffe v V S & B Border Homes Ltd (1987) 9 NSWLR 390 Reich v Client Server Professionals of Australia Pty Limited (2000) 99 IR 69 Repatriation Commission v Hayes (1982) 43 ALR 216 Rice v Henley (1914) 19 CLR 19 Starevich v Repatriation Commission (1987) 76 ALR 449 Stonham v Speaker of the Legislative Assembly of New South Wales (No.4) (2001) 110 IR 417 Stout v R A Wenham Builders Pty Ltd [1980] 1 NSWLR 426 Westfield Holdings v Adams (2002) 114 IR 241 Wong v Cheng t/as Artist Production (1999) 91 IR 369 HEARING DATES: DATE OF JUDGMENT: 07/31/2003

[12]

Does the New South Wales Industrial Relations Commission in Court Session have the jurisdiction to make an order naming a person as a respondent to an application under s 106 of the Industrial Relations Act 1996 in circumstances where: (a) The summons for relief seeks an order declaring a contract of employment whereby the applicant performed work in an industry to be unfair, harsh and unconscionable and contrary to the public interest; (b) The summons for relief seeks an order declaring void in whole or in part or varying in whole or in part the contract of employment either from its commencement or from some other time; (c) The summons for relief was originally commenced prior to the commencement of s 108B of the Act which limits the time periods in which applications for orders under Division 2 of Part 9 of Chapter 2 of the Industrial Relations Act 1996 can be commenced; (d) The Notice of Motion to join the additional respondents was filed prior to the commencement of s 108B of the Industrial Relations Act 1996; (e) The hearing of the Notice of Motion to join the additional respondent was [listed] prior to the commencement of s 108B of the Industrial Relations Act 1996; (f) The hearing of the Notice of Motion was subsequent to the commencement of s 108B; (g) At the time of the hearing of the Notice of Motion more than 12 months had elapsed since the termination of the contract of employment; (h) The effect of the amended summons for relief under s 106 of the Industrial Relations Act 1996 is to seek orders under Division 2 of Part 9 of Chapter 2 of the Industrial Relations Act 1996 against the proposed respondents in relation to a contract that has been terminated? 2. When a summons for relief is amended to join additional respondents, does the limitation period in s 108B in relation to the proposed respondents run from the date of termination of the contract to: (a) The date of the filing of the notice of motion to amend the summons to join additional respondents; (b) The date the summons is amended to "join" the additional respondents? 3. Whether the Court has the jurisdiction to amend a summons for relief to allow an applicant to seek orders under Division 2 of Part 9 of Chapter 2 of the Industrial Relations Act 1996 against a proposed respondent in relation to a contract that has been terminated and more than 12 months has elapsed since the termination of the contract and the hearing of the Notice of Motion to join the proposed respondent. 4. Does the reference to an application for an order under this Division in s 108B include an order to make a person a respondent to a Summons for Relief under s 106?

[15]

6 The Industrial Relations Amendment (Unfair Contracts) Act 2002 relevantly inserted two new sections into the relevant Division. The provisions are s 108A and s 108B, which provide: 108A Employment contracts in respect of which applications cannot be made (1) An application cannot be made for an order under this Division if the application relates to a contract of employment under which: (a) a remuneration package that exceeds the remuneration cap is paid or received (or is payable or receivable) during the period of 12 months immediately before the application is made (or, if the application concerned relates to a contract that has been terminated, immediately before the termination), or (b) a remuneration package is paid or received (or is payable or receivable) during a period of less than 12 months immediately before the application is made (or, if the application concerned relates to a contract that has been terminated, immediately before the termination) that would, if the remuneration package had been paid or received (or been payable or receivable) for a period of 12 months, have exceeded the remuneration cap. (2) An application cannot be made for an order under this Division by a person who is a partner carrying on a business if: (a) the application relates to a contract between that partner and the other persons carrying on that business in partnership, and (b) the share of the net profits, or payments contingent on the net profits, of the business that are paid to or received by (or payable to or receivable by) the applicant during the period of 12 months immediately before the application is made (or, if the application relates to a contract that has been terminated, immediately before the termination) exceed: (i) $200,000, or (ii) if an amount is prescribed for the purposes of paragraph (b) of the definition of "remuneration cap" in subsection (3)---that amount. (3) In this section: "contract of employment" means any contract or arrangement under which work is done by a person in the capacity of an employee, and includes a related condition or collateral arrangement with respect to such a contract. "employment benefit" means a benefit provided to an employee at the cost of his or her employer (being a benefit of a private nature) and, without limitation, includes: (a) contributions payable to a superannuation scheme by an employer in respect of the employee, including any liability of that employer to make any such contributions or to pay costs associated with that scheme, or (b) the provision by an employer of a motor vehicle for private use by the employee, or (c) any other benefit prescribed by the regulations for the purposes of this definition. "monetary remuneration" includes any performance-related bonus or incentive payment. "remuneration cap" means: (a) $200,000, except as provided by paragraph (b), or (b) any greater amount prescribed by the regulations (being a regulation that increases the amount by reference to increases in the amount referred to in section 83 (1) (b)). "remuneration package" means the total value of monetary remuneration and employment benefits payable or receivable under a contract of employment. 108B Time for making application (1) An application for an order under this Division in relation to a contract that has been terminated must be made not later than 12 months after the termination of the contract. (2) The Commission does not have jurisdiction to extend the time for making any such application or to accept an application made after the time prescribed by subsection (1). These amendments came into effect on 24 June 2002.

[71]

52 Clearly, the original summons filed constitutes an application for an order under s 106(1) in respect of a particular contract or arrangement. It was filed well before the commencement of s 108B and the original summons and the orders sought therein are therefore not affected by the limitation period created by that section. What then, is the effect of the amendment sought to the summons? Does it constitute a separate application for an order under the Division or should it be characterised as being an amendment to an application for an order already made and with respect to which s 108B has no effect? Or, to put the matter in a slightly different way, does the amendment, in substance rather than in mere form, give rise to an application for an order declaring wholly or party void or to vary the same contract or arrangement as that identified in the original application, or does it amount to an application for an order in respect of a different contract or arrangement? 53 The summons currently names UCS Developments Pty Ltd as first respondent and Unified Communications Systems Pty Ltd as second respondent. The summons claims relief with respect to contracts of employment between the applicant and the second respondent. The first respondent is said to be specified as the applicant's employer on the applicant's 2001 group certificate. The summons alleges employment with the second respondent commencing in July 1999, the acquisition by a third party of the second respondent and a process by which the applicant came to be employed by another entity. 54 The proposed amended summons alleges that the first and second respondents "were spun out of" the fourth respondent and that the third respondent was employed by the fourth respondent. It is alleged that the fourth respondent purchased the assets of an entity within which the applicant worked and which commenced paying the applicant's salary. It is further alleged that the applicant reported to the third respondent whilst employed by the second respondent. However it is not alleged in the summons that the applicant became employed by the fourth respondent. The summons proceeds on the basis that the applicant's employment continued with the second respondent and that the fourth respondent brought about the termination of his employment with the second respondent which occurred through the actions of the third respondent as a director of the fourth respondent. The proposed amended summons still has as a substantial focus the contract of employment between the applicant and the second respondent and his employment by the first and second respondents. 55 While the proposed amended summons seeks to join additional respondents, the joinder is based upon their alleged participation in the circumstances which gave rise to the initial application for an order under s 106 constituted by the original summons. In these circumstances, the conclusion is available that the application to amend the summons and the proposed amended summons do not constitute a fresh application for an order, but are in substance an amendment to an application for an order made under s 106(1) prior to s 108B coming into effect. The amendment sought and, if granted, the resulting amended summons are therefore not precluded by s 108B.