Maestrale & Anor v Australian National Security Pty Ltd t/as All Night Security & Ors [2005] NSWIRComm 441

Maestrale & Anor v Australian National Security Pty Ltd t/as All Night Security & Ors [2005] NSWIRComm 441

The contractual arrangement instigated by the fourth respondent required the applicant(s) to become independent contractors and was designed to and did avoid the provisions of an industrial instrument, resulting in remuneration less than award entitlements; the contract was held unfair within s 105(c)-(d) of the Industrial Relations Act 1996. Discretion exercised in favour of the applicant for compensatory orders, discounting for financial benefit and excluding part of the claim due to delay and employee status.

Parties
First Applicant: Rosetta Maestrale; Second Applicant: ICU Security Pty Ltd; First Respondent: Australian National Security Pty Ltd t/as All Night Security; Second Respondent: Fiance Pty Ltd; Third Respondent: AFJ Holdings Pty Ltd; Fourth Respondent: Alfio Peter Merlino
Jurisdiction
Australia
Judgment Date
29 November 2005
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 / Judgment
Outcome
Contract found unfair; orders to be made in favour of first applicant (subject to discount for tax/minimisation and exclusion of claim period as employee); second applicant's claim dismissed; matter stood over for parties to confer on calculation.
Legal Topics
Unfair Contract, Employment Status, Security Industry, Award Avoidance, Remuneration Below Award, Jurisdiction Under S 106 Industrial Relations Act 1996, Delay and Discretion, Costs
Industrial Law Unfair Contract Employment Status Security Industry Award Avoidance Remuneration Below Award Jurisdiction Under S 106 Industrial Relations Act 1996 Delay and Discretion +1 more

Case Brief

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Parties

Rosetta Maestrale

First Applicant

ICU Security Pty Ltd

Second Applicant

Australian National Security Pty Ltd t/as All Night Security

First Respondent

Fiance Pty Ltd

Second Respondent

AFJ Holdings Pty Ltd

Third Respondent

Alfio Peter Merlino

Fourth Respondent

Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 / Judgment

Legal Issues

  1. 1 Whether the contract between applicant(s) and respondent(s) was unfair within the meaning of s 105(c)-(d) of the Industrial Relations Act 1996
  2. 2 Whether arrangement was designed to or did avoid award provisions
  3. 3 Whether contract provided total remuneration less than employee performing the work

Ratio Decidendi

The contractual arrangement instigated by the fourth respondent required the applicant(s) to become independent contractors and was designed to and did avoid the provisions of an industrial instrument, resulting in remuneration less than award entitlements; the contract was held unfair within s 105(c)-(d) of the Industrial Relations Act 1996. Discretion exercised in favour of the applicant for compensatory orders, discounting for financial benefit and excluding part of the claim due to delay and employee status.

Court Disposition

Contract found unfair; orders to be made in favour of first applicant (subject to discount for tax/minimisation and exclusion of claim period as employee); second applicant's claim dismissed; matter stood over for parties to confer on calculation.

Orders

  • First applicant granted compensatory orders for shortfall against award level income, discounted for tax benefit.
  • First applicant awarded 85 percent of costs.