Costopoulos v Hansen Yuncken Pty Limited [2003] NSWIRComm 335

Costopoulos v Hansen Yuncken Pty Limited [2003] NSWIRComm 335

The contract of employment operated independently of the federal statutory instruments and was found to contain terms and conduct unfair to the applicant regarding notice of termination. The employment category and notice rights, being part of the contract, attracted relief under s106. Statutory instruments did not comprehensively 'cover the field', allowing for s106 orders without inconsistency. Failure to pay notice and improper characterisation of holiday pay breached the applicant's contract, warranting variation of the contract and payment of twelve months' notice, with interest from the date of termination.

Parties
Applicant: Andreas Costopoulos; Respondent: Hansen Yuncken Pty Limited
Jurisdiction
Australia
Judgment Date
06 November 2003
Procedural Posture
Section 106 Unfair Contract Claim Under Industrial Relations Act 1996 (nsw) / Final Judgment and Orders
Outcome
Application upheld in part; contract varied to afford additional notice payment.
Legal Topics
Unfair Contract, Employment Termination, Notice Payment, Redundancy, Enterprise Agreement, Award Incorporation, Statutory Inconsistency
Employment Law Industrial Relations Unfair Contract Employment Termination Notice Payment Redundancy Enterprise Agreement Award Incorporation +1 more

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Parties

Andreas Costopoulos

Applicant

Hansen Yuncken Pty Limited

Respondent

Procedural Posture

Section 106 Unfair Contract Claim Under Industrial Relations Act 1996 (nsw) / Final Judgment and Orders

Legal Issues

  1. 1 Whether the applicant's contract of employment was unfair, harsh or unconscionable under s106 of the Industrial Relations Act 1996 (NSW)
  2. 2 Whether terms of the relevant Federal Award and Certified Enterprise Agreement were incorporated into the employment contract
  3. 3 Whether an inconsistency arises between the federal statutory regime and s106 orders under State law

Ratio Decidendi

The contract of employment operated independently of the federal statutory instruments and was found to contain terms and conduct unfair to the applicant regarding notice of termination. The employment category and notice rights, being part of the contract, attracted relief under s106. Statutory instruments did not comprehensively 'cover the field', allowing for s106 orders without inconsistency. Failure to pay notice and improper characterisation of holiday pay breached the applicant's contract, warranting variation of the contract and payment of twelve months' notice, with interest from the date of termination.

Court Disposition

Application upheld in part; contract varied to afford additional notice payment.

Orders

  • The contract of employment between the applicant and the respondent be varied and the respondent pay to the applicant 12 month's payment as to Notice calculated at his full salary package rate from 20 February 2001.
  • Interest on that amount calculated in accordance with s94 of the Supreme Court Act 1970 as amended from 20 February 2001.