Fayle v Diveda Pty Ltd and ors [2004] NSWIRComm 257

Fayle v Diveda Pty Ltd and ors [2004] NSWIRComm 257

The third respondent, Ms Riebe, was not culpably associated with nor participated in the fixing of the applicant's remuneration below the award rate; therefore, she is not liable for compensation under s 106(5) of the Industrial Relations Act 1996.

Parties
Applicant: Arthur Fayle; First Respondent: Diveda Pty Ltd; Second Respondent: Michael Charles Cadden; Third Respondent: Maren Riebe
Jurisdiction
Australia
Judgment Date
08 September 2004
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 / Judgment After Hearing
Outcome
Summons against third respondent dismissed; contract of employment between applicant and first respondent varied; costs reserved; liberty to apply granted regarding balance of proceedings.
Legal Topics
Unfair Contract, Underpayment of Award Wages, Directors' Liability, Employment Law
Industrial Law Unfair Contract Underpayment of Award Wages Directors' Liability Employment Law

Case Brief

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Parties

Arthur Fayle

Applicant

Diveda Pty Ltd

First Respondent

Michael Charles Cadden

Second Respondent

Maren Riebe

Third Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether third respondent is liable for compensation as director and equal shareholder of first respondent under s 106(5) of the Industrial Relations Act 1996
  2. 2 Whether there was culpability involved in the fixing of remuneration under the award rate

Ratio Decidendi

The third respondent, Ms Riebe, was not culpably associated with nor participated in the fixing of the applicant's remuneration below the award rate; therefore, she is not liable for compensation under s 106(5) of the Industrial Relations Act 1996.

Court Disposition

Summons against third respondent dismissed; contract of employment between applicant and first respondent varied; costs reserved; liberty to apply granted regarding balance of proceedings.

Orders

  • The contract of employment between the applicant and the first respondent is varied ab initio so the applicant is remunerated in accordance with industrial instruments.
  • The summons against the third respondent is dismissed.