Strezouski v Tempo Services Limited [2004] NSWIRComm 374

Strezouski v Tempo Services Limited [2004] NSWIRComm 374

Clause 12(v) of the Cleaning and Building Services Contractors (State) Award was void to the extent that it allowed the same employer to engage the same employee under a second part-time contract and pay ordinary time rates for work causing the employee's ordinary hours to exceed 40 hours per week averaged over a 12 week period, because s 22(1) of the Industrial Relations Act 1996 applies to the employee's total ordinary hours with the employer rather than separately to each contract.

Jurisdiction
Australia
Judgment Date
13 December 2004
Procedural Posture
Application for Declaratory Relief Under S 154 of the Industrial Relations Act 1996 / Judgment
Outcome
Application granted; declarations made; costs reserved with liberty to apply as to costs.
Legal Topics
['maximum Ordinary Hours of Employment' 'award Inconsistency' 'part Time Second Engagement' 'overtime Rates' 'declaratory Relief']
['industrial Law' 'employment Law'] ['maximum Ordinary Hours of Employment' 'award Inconsistency' 'part Time Second Engagement' 'overtime Rates' 'declaratory Relief']

Case Brief

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Procedural Posture

Application for Declaratory Relief Under S 154 of the Industrial Relations Act 1996 / Judgment

Legal Issues

  1. 1 ['Whether clause 12(v) of the Cleaning and Building Services Contractors (State) Award was invalid to the extent that it allowed the same employer and employee to have a second part-time engagement paid at ordinary time rates after full-time ordinary hours.' "Whether s 22(1) of the Industrial Relations Act 1996 applies to an employee's total ordinary working hours with the same employer, or separately to each contract of employment." 'Whether the applicant was entitled to overtime rates for work performed outside his ordinary hours in excess of 40 hours per week averaged over a 12 week period.']

Ratio Decidendi

Clause 12(v) of the Cleaning and Building Services Contractors (State) Award was void to the extent that it allowed the same employer to engage the same employee under a second part-time contract and pay ordinary time rates for work causing the employee's ordinary hours to exceed 40 hours per week averaged over a 12 week period, because s 22(1) of the Industrial Relations Act 1996 applies to the employee's total ordinary hours with the employer rather than separately to each contract.

Court Disposition

Application granted; declarations made; costs reserved with liberty to apply as to costs.

Orders

  • ['Clause 12(v) of the Cleaning and Building Services Contractors (State) Award is void to the extent that it is inconsistent with s 22(1) of the Act in allowing the applicant to perform work for the respondent at ordinary time rates of pay exceeding 40 hours per week in any 12 week period.' 'The applicant is...