Logan v Otis Elevator Company Pty Limited

Introduction 1 This matter now has a long history. The early history was set out at the commencement of reasons for judgment (these reasons have to be read in conjunction with the earlier reasons) I published on 20 June 1997: [1997] IRCA 200: "On 16 February 1995 Mr Peter Logan filed an application under s 170EA of what was then entitled the Industrial Relations Act 1988 ("the Act"). Mr Logan alleged that his employment with Otis Elevator Company Pty Ltd ("Otis") had been terminated on 8 February 1995 in contravention of provisions of the Act. That application was ultimately heard and determined by a Judicial Registrar who concluded, in reasons for judgment published on 30 October 1995, that the termination of Mr Logan's employment was not for a valid reason of the type referred to in s 170DE(1) of the Act, and went on to express the view that, had it been necessary for him to determine the matter, the termination was also in contravention of s 170DE(2). This last provision is not a valid law of the Commonwealth and need not be considered further: see Victoria v Commonwealth (1996) 138 ALR 129. The Judicial Registrar did not order reinstatement but awarded compensation of $20,000. By notice of motion filed on 17 November 1995, Otis sought a review under s 377 of the Act of the determination of the Judicial Registrar. That application apparently gave rise to further claims by Mr Logan not based on the provisions of Division 3 of Part VIA of the Act. In January 1996, a statement of claim was filed on behalf of Mr Logan which, in its final amended form, alleged a failure to pay him amounts due under of one of two awards and alleged a breach of the contract of employment concerning overtime and notice. Sums aggregating more than $830,000 were particularised in the statement of claim as amounts due to Mr Logan. The amounts said to be due under the award were for overtime worked by Mr Logan and amounts payable to an employee who is liable to be called back to work and/or who is standing by. While it was, for a period, a contentious issue at the trial, it was ultimately determined that judgment should be given on all issues except the quantum of Otis's liability for breaches of any award, if liability is established." 2 In that judgment I determined a number of issues which were reflected in formal orders made on 11 March 1999. Those orders were accompanied by reasons which recanvassed and updated the history. At the commencement of those reasons I said: "In June 1997 I published reasons for judgment effectively disposing of a number of issues in proceedings between Mr Logan and Otis Elevator Company Pty Ltd ("Otis"). In those reasons I canvassed, in detail, the relevant evidence and the legal issues raised in the proceedings. What I was required to deal with in that judgment had been determined by a consent order I had made on 8 March 1996 (prior to trial) that had been proposed by the parties. The proceedings before me were initially an application for the review of a decision of a judicial registrar. Such an application could be made, as of right, by a party aggrieved by the decision of a judicial registrar. That application was brought by Otis who had unsuccessfully defended before a judicial registrar an application by Mr Logan who established that the termination of his employment with Otis had been in contravention of Division 3 of Part VIA the Industrial Relations Act 1988. The judicial registrar had awarded compensation in the sum of $20,000. It appears the initiation of the review led Mr Logan, no doubt on advice, to commence proceedings in the Court's accrued jurisdiction alleging breach of his employment contract with Otis and invoking the Court's statutory jurisdiction to remedy a contravention of an award. This was done by way of statement of claim. As to the award contravention it was contended by Mr Logan that his employment with Otis was regulated by one of two awards made under either the Industrial Relations Act 1988 or legislation it had repealed and that certain entitlements he had under one or other of those awards had not been provided or provided fully by Otis. The order I earlier referred to which was made on 8 March 1996 resulted in the question of the quantum of any liability either under an award or under the contract being determined separately from and following the resolution of other issues. While this course was later questioned by counsel for Otis during the trial I decided to adhere to the course that the parties had, by agreement, earlier chartered for themselves. Given what has transpired since I doubt the wisdom of that course. At the conclusion of my reasons of 20 June 1997 I indicated that the applicant should bring in short minutes of orders to give effect to those reasons. A little under a year later those representing the applicant saw fit to do so. In the result a position was reached in February this year where orders could be made giving effect to my reasons for judgment. Those orders are reflected in the orders I make today. While there was not entire agreement between the parties as to what form the orders should take and what matters should be the subject of orders there was general agreement about much of what the applicant proposed." 3 The orders I made on 11 March 1999 were as follows: 1. The termination of employment of the applicant was in contravention of s 170DE of the Industrial Relations Act 1988 (Cth). 2 The respondent pay the applicant $20,000 within 28 days. 3. That part of the claim of the applicant pleaded in paragraphs 10, 11 and 12 and Schedule 1 of the Further Amended Statement of Claim filed 18 October 1996 is dismissed. 4. That part of the claim of the applicant pleaded in paragraphs 21, 22, 23 and 24 of the Further Amended Statement of Claim filed on 18 October 1996 is dismissed. 5. In the period 1988 until the termination of his employment the work undertaken by the applicant was work comprehended by the classification of electrician special class within the meaning of clause 3(e) of the National Metal and Engineering On-Site Construction Industry Award 1989. 6. Costs reserved. 7. The matter be listed for directions on 25 March 1999 at 9.30 am. 4 Mr Logan ("the applicant") successfully appealed against certain of these orders. The Full Court of the Industrial Relations Court of Australia gave judgment on 22 June 1999: (1999) 94 IR 218, and made the following orders: